Murphy & Williamson
[2025] FedCFamC2F 712
•3 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Murphy & Williamson [2025] FedCFamC2F 712
File number(s): DGC 4186 of 2023 Judgment of: JUDGE JENKINS Date of judgment: 3 June 2025 Catchwords: FAMILY LAW – PARENTING – family violence – unacceptable risk of harm to children if they spend time with the father – significant non-compliance with court orders – father unwilling or unable to comply with court orders – power imbalance – no insight into parental behaviour – father had no evidence before the court – ongoing risk – risk not ameliorated by supervised time or orders for counselling or courses – children to have no time or communication with the father – sole parental responsibility to the mother – mother permitted to obtain passports for the children and to take them out of Australia without the consent of the father. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CG, 65D, 102NA Cases cited: Deiter & Deiter [2011] FamCAFC 82
Isles & Nelissen [2022] FedCFamC1A 97
Fitzwater & Fitzwater [2019] FamCAFC 251
Pickford & Pickford [2024] FedCFamC1A 249
Division: Division 2 Family Law Number of paragraphs: 90 Date of hearing: 7 May 2025 Place: Dandenong Counsel for the Applicant: Mr Jackson Solicitor for the Applicant: Oldham Family Law Representative for the Respondent: In person Counsel for the Independent Children's Lawyer: Mr McLeod Solicitor for the Independent Children's Lawyer: Bentleigh Family Lawyers ORDERS
DGC 4186 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MURPHY
Applicant
AND: MR WILLIAMSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
3 JUNE 2025
THE COURT ORDERS ON A FINAL BASIS THAT:
1.All previous parenting orders be discharged.
2.The mother have sole decision-making powers for all major long-term issues including (but not limited to) those defined in section 4 of the Family Law Act 1975 (Cth) in relation to the care, welfare and development of the children X born in 2011, Y born in 2013, and Z born in 2019 (collectively “the children”).
3.The children live with the mother.
4.The children spend no time and have no communication with the father.
5.The Mother be and is hereby authorised and permitted to obtain an Australian Passport for the children X born in 2011, Y born in 2013 and Z born in 2019, without first obtaining the written consent of the father.
6.The children (or any of them) be and are hereby permitted to depart the Commonwealth of Australia, either accompanied by the mother or with the written consent of the mother, and to travel internationally as provided by section 11(1)(b) of the Australian Passport Act 2005 (Cth) without the consent of the father.
7.The appointment of the Independent Children’s Lawyer be hereby discharged.
8.All extant applications are otherwise dismissed and removed from the pending cases list maintained by the Court.
AND THE COURT NOTES THAT:
A.Pursuant to subsections 62B and 65DA(2) of the Family Law Act 1975 (Cth), (“the Act”) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
B.The mother sought injunctions pursuant to section 68B of the Act for her personal protection and the protection of the children. The court would have made such orders but for the provisions of section 114AB of the Act.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS:
This is a parenting matter that concerns three children, X (“X”) aged 14 years old, Y (“Y”) aged 12 years old and Z (“Z”) aged five years old.
The children live with Ms Murphy, (“the mother”) and have not seen Mr Williamson (“the father”) since early 2023. Albeit there is an Independent Children’s Lawyer (“the ICL”) in this matter, for convenience I shall refer to the mother and father as “the parties.”
The mother and the ICL propose orders that the current arrangements continue, and that the mother otherwise have sole decision-making responsibility for the children.
The father proposed orders including for shared decision making, that the children live with the mother, and that they spend time with him every second weekend.
BRIEF BACKGROUND
The parties met in Queensland in 2009, when the mother was just 16 years old and the father about 22 years of age. In 2010, the parties moved to Town B, in Victoria, to be near to the paternal grandparents, Mr C and Ms D.
X was born in 2011.
Y was born in 2013.
Z was born in 2019.
The parties were in an on and off relationship, finally separating in about 2021.
In mid-2022, the police obtained an intervention order (“IVO”) on behalf of the mother and children.
In mid-2022, the father was charged with breaching the IVO and spent six to eight weeks on remand.
Upon the father’s release from prison, the father spent ad hoc time with the children subject to providing clean urine drug screens to the mother.
In or about October 2023, the mother ceased all time between the father and children due to increasing concerns about the father’s living conditions and because of disturbing comments the father was making about the mother to the children, which the children subsequently told her about.
The mother filed her application initiating these proceedings in this court in January 2024.
On 20 March 2024, the father was ordered to undergo a hair follicle test (“HFT”) within 28 days (“the March orders”).
On 17 April 2024, orders (“the April orders”) were made for the father to spend supervised time with the children subject to providing a clean HFT. The father was also ordered to attend upon alcohol and drug counselling and to undergo a psychological assessment.
The parties attended upon court child expert Ms E (“Ms E”) in late June 2024 for the child impact report (“CIR”).
On 6 August 2024, Senior Judicial Registrar Crocker made orders (“the August orders”) for the father’s time to be reserved pending his compliance with the March orders to undergo a HFT, and the April orders to undergo a psychological assessment. The father was further ordered to undergo a men’s behavioural change program. The mother was ordered to re-engage with a family violence service.
The father has not provided any evidence that he has complied with the orders to complete a HFT, to do a psychological assessment, or to complete a men’s behavioural change program, and as such his time with the children remains suspended.
The mother remains living in Town B in rental accommodation. She is currently unemployed and relies on government benefits. She receives no child support from the father.
The father lives in a caravan which has been located on various properties.
X has been diagnosed with attention deficit hyperactivity disorder (“ADHD”) and a medical condition. He is currently attending year eight at F School. The mother’s evidence is that X is hoping to become a tradesperson once he leaves school.
Y has also been diagnosed with ADHD. She is in year six at G School.
Z was diagnosed with a medical condition as a newborn and underwent surgery at three months old. Z has been diagnosed with several medical conditions, for which she requires regular medical reviews. She currently attends prep at G School.
DOCUMENTS RELIED UPON
The mother relied upon:
·her amended application for final orders filed 30 September 2024;
·her trial affidavit filed 9 April 2025; and
·her affidavit filed 26 July 2024.
The father relied upon his response filed 21 October 2024, but had not otherwise complied with orders and directions made on 22 November 2024 for the filing of a trial affidavit. The father told the court he had tried to file an affidavit, but it had not been accepted. After further investigation, it appears that he had tried to file documents in September 2024. This included one affidavit five paragraphs long, commencing with the statement “I declare [the mother] a vexatious litigant.” Even if the father had been allowed to rely upon that affidavit, it would not have been of any assistance to the court. The father therefore had no evidence before the court.
The ICL relied upon:
·the CIR;
·material produced by the Department of Families, Fairness and Housing (“DFFH”) dated early 2024; and
·material produced by Victoria Police dated early 2024.
In addition, the following exhibits were tendered in this matter:
·M1 – the interim IVO protecting the father and the children dated early 2024;
·M2 – the interim IVO protecting the mother and the children dated late 2023;
·M3 – the final IVO protecting the mother and the children dated mid-2022;
·M4 – messages between the father and X dated 2022;
·M5 – letter received by the mother from the father dated 29 July 2022;
·M6 – Appclose messages asking mother to facilitate contact between the father and the children dated 18 April 2024 to 30 May 2024;
·M7 – Appclose messages from the father between 16 and 18 January 2025;
·M8 – statements made by Victoria Police in early 2024 and, mid-2024; and
·M&ICL1 – proposed minute of final orders of the mother and ICL dated 6 May 2025.
THE EVIDENCE
At the commencement of the trial the father sought an adjournment in order to be able to obtain legal representation. For reasons given at the time, that adjournment request was refused.
The final hearing proceeded in person at the Dandenong registry but for the father, who was granted leave by Judge Howe on 22 November 2024 to appear electronically at trial. The father did not appear via Microsoft Teams and instead was dialled into the trial using his mobile phone.
As the mandatory provisions of section 102NA of the Family Law Act 1975 (Cth) (“the Act”) applied, the father was unable to cross-examine the mother. However, the father was able to cross-examine Ms E, the CIR writer. Ms E did not resile from her opinions in her report. The mother conceded in her evidence that the report was more or less factually accurate. Ms E gave her evidence in a professional manner and the cross-examination gave me no reason to question the validity of her opinions.
The mother gave evidence and was cross-examined by the ICL. The mother gave her evidence in a straightforward and convincing manner. The mother’s answers gave me no cause to question her version of events. I accept her evidence in its entirety.
THE LAW
Pursuant to section 60CA of the Act, the best interests of a child are the paramount consideration for the court when making a parenting order.
Section 65D of the Act directs the court to make such parenting orders as it thinks proper.
The Act specifies six matters which must be considered in determining what is in the child’s best interests at subsection 60CC(2). The matters to be considered include:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
The Court must also consider any history of family violence, abuse, or neglect involving the child, or a person caring for the child, together with any family violence order that currently or has previously applied to a child, or a member of the child’s family.
Section 60CG of the Act further requires a Court when considering what parenting order to make, to ensure that whatever order is made that it does not expose a person to an unacceptable risk of family violence and is consistent with any family violence order.
Safety of the mother and children
The mother makes allegations of family violence against the father, including that he was physically, emotionally and sexually abusive during the relationship. The allegations include an incident which caused the mother to attend hospital when she was pregnant with X. In relation to the physical abuse the mother attests to the following:
During arguments, [the father] would push me into walls, hit me over the head with objects – such as shoes and throw things at me. After the argument concluded, [the father] would tell me that he was not physical towards me, and that I had made it up in my head.[1]
[1] Mother’s trial affidavit filed 9 April 2025 (“mother’s trial affidavit”) at [15(d)].
In mid-2022, the police applied for an IVO to protect the mother and the children following an incident in which the mother says the father hit her over the head with a book.[2]
[2] Mothers trial affidavit at [25].
The mother’s evidence is that subsequent to the IVO being made, the father breached the order by hacking into her online accounts and attending at a mechanic to try and repossess her car. She also tendered into evidence text messages the father sent to the children asking them to listen in to her conversations with the police.[3] The police consequently arrested the father in or about mid-2022 and he spent six to eight weeks on remand. Despite this, in mid-2022 the father sent the children a letter from prison stating amongst other things:
Anyway I will see what happens when I see my lawyer, ill either be out by Friday or if I fight these silly charges I will be in longer but the police will be paying for our holidays For lying! If im allowed to I will call as soon as i get out because I should be upto a few weekends in a row by now…[4]
(Errors as per original)
[3] Exhibit M4.
[4] Exhibit M5.
The mother says that upon being released from prison the father continued to breach the IVO including messaging the mother in April 2024 about seeing the children, despite there being clear court orders that the father was to see the children under supervision, but only upon providing a clean HFT.[5]
[5] Exhibit M7.
The mother told Ms E in June 2024 that “she is fearful for the children’s safety if they spend-time with Mr Williamson; and fearful for her safety if Mr Williamson was denied spend-time with the children.”[6] For reasons already stated I accept the evidence of the mother both as to the family violence committed by the father but also that she remains genuinely fearful of the father.
[6] CIR at [47].
Ms E expressed the following opinion in her report:
The totality of the parties’ accounts is demonstrative of intersecting risk issues. With respect to [Mr Williamson], it is assessed that his difficulties regarding his mental health and abuse of illicit drugs compound the family violence risk, exacerbating the likelihood of family violence behaviours. With respect to [Ms Murphy], it is assessed that the difficulties regarding her mental health increase her vulnerability, as a family violence victim survivor.[7]
[7] CIR at [39].
In the CIR, Ms E also expressed concerns about the power imbalance between the mother and the father, specifically due to the young age the mother was at the commencement of the parties’ relationship and the father’s dominant personality. She says that due to this power imbalance the mother remains vulnerable to further family violence.
As a result of her assessment, Ms E concluded the following:
50. There are Interim Orders requiring [Mr Williamson] to participate in a psychological assessment and complete hair follicle testing. These measures can increase understanding of the risk related to his mental health and his use of illicit drugs. Spend-time is not able to be recommended prior to consideration of the information provided by these assessments.
51. The risk of family violence identified further informs the view that a cautious approach is required. Spend-time arrangements that are not sufficiently contained are likely to increase the risk of the children’s exposure to family violence. As such, it is recommended that [Mr Williamson]’s participation in the aforementioned assessments and any recommended interventions is paramount. A Men’s Behaviour Change Program may also be considered; however [Mr Williamson]’s demonstrated lack of insight may limit eligibility and engagement.[8]
(Emphasis added)
[8] CIR at [50] – [51].
Ms E also recommended the mother re-engage with family violence support services.[9]
[9] CIR at [53].
The August orders were made following the release of the CIR, and appear to be based on the recommendations contained therein. As already stated, there is no evidence the father has complied with any of those orders.
The father told the court that he was not aware of the orders for a HFT and that he never would have agreed to such orders. There is some merit in this assertion given that at the time of the March orders, on the father’s own admission, he was still using methamphetamine.[10] The father told Ms E that he used methamphetamine to help him deal with post-traumatic stress disorder (“PTSD”) which in turn was caused by his period of incarceration. In this regard, Ms E notes as follows:
[Mr Williamson] disclosed a history of using methamphetamines. He denied use of any other drugs or any intravenous drug use. He reported prior engagement with a drug and alcohol counsellor; however it is unclear if this intervention will continue. [Mr Williamson] indicated intersectionality between his mental health and drug use, indicating that he developed PTSD whilst incarcerated and relied on methamphetamine to “get me up and out” in society. [Mr Williamson] reported that he previously used one point of ice over one day each week. He suggested his consumption was regular in 2022, approximately once each week. He reported that he most recently used methamphetamines in March 2024 and currently reported that he is abstinent. Notwithstanding his disclosure of previous drug use and current sobriety, [Mr Williamson] expressed a view that requests that he complete drug testing by [Ms Murphy] and/or the Court is abusive and intended to control him; and he might not comply.[11]
(Emphasis added)
[10] CIR at [36].
[11] CIR at [36]
The mother’s evidence is that the father’s drug use was not just limited to the period he reports to Ms E. Her evidence is he was fired from a job in 2020 due to failing a drug test, and that in 2021, she found methamphetamines inside of a case in the garage.[12] For reasons already provided I accept this evidence of the mother.
[12] Mother’s trial affidavit at [16].
The father said from the bar table that using drugs was “the wrong thing to do and he has learnt”. He said doing hair follicle tests “was a load of nonsense” although he was prepared to do urine drug testing.
In regard to attendance upon a men’s behavioural change program the father said from the bar table, “why would I need to do one of them? That is a genuine question – I don’t understand why they have put that on there, I haven't done anything wrong.”
It is apparent from the father’s comments in the CIR, and to the court, that he believes that he is the one who is being “dominated and controlled,” and that the mother has “abducted” his children and kept them from him without justification. Furthermore, his submissions focused on the impact on him, and not the children, for example he stated that it was “hard to hear” the things alleged about him, which he maintained were untrue.
The mother was ordered to engage with a family violence service. Her evidence is that she had three sessions with a service through H Organisation.[13] She says she now feels more able to stand up to the father, although whilst she is less fearful than she was in the past, she remains vigilant and has an “exit plan” which she created in conjunction with J Service, a support service for victims of family violence. She says that she is prepared to execute the exit plan to keep herself safe if the father gives her cause to do so. She gave oral evidence that if the father attends her house that she “knows where to go.”
[13] Mother’s trial affidavit at [56].
Risk posed by the mother
In the CIR, the father alleged it was the mother who had been the perpetrator of family violence. In keeping with this, and notwithstanding the fact that the children were in the primary care of the mother and not spending time with the father, the father obtained an IVO against the mother in early 2024.
Ms E reported as follows:
[Mr Williamson] provided an account of alleged family violence perpetrated by [Ms Murphy]. He alleged that she has hit him, although he incurred a criminal charge for assaulting her on this occasion; belittled him; and misrepresented him to the paternal grandfather who has subsequently threatened to harm or kill [Mr Williamson]. [Mr Williamson] further alleged that [Ms Murphy] is continuing to exert coercive control through the instigation of these proceedings. He cited as an example of abuse and control, [Ms Murphy]’s requirement that he provide a urine drug test prior to spend-time with the children. [Mr Williamson] suggested that [Ms Murphy]’s request to provide a urine drug test in her presence was an act of sexual abuse. He also alleged that she is a “vexatious litigant,” reporting IVO breaches to exert financial control; and that she has breached the intervention order on at least 157 occasions.[14]
[14] CIR at [27].
The mother gave evidence that she has not been spoken to by the police about these alleged breaches. Furthermore, as noted by Ms E, the father’s narrative is not consistent with the Victoria Police and child protection records.[15] As such, it was Ms E’s opinion that such assertions by the father are a perpetuation of the family violence committed by him against the mother.
[15] CIR at [28].
Notwithstanding that he took out an IVO against the mother, in the CIR the father was reported as follows:
[Mr Williamson] initially indicated that the children are relatively safe and well-cared for by [Ms Murphy]. He suggested that there may be some risk however, on account of an incident where [Ms Murphy] allegedly assaulted a friend in a public place. He also suggested that she required mental health support, suggesting she is not affectionate with the children; and suggested that she has previously used marijuana although not to the extent of dependency.[16]
[16] CIR at [37].
When questioned by the court as to whether the father still maintained concerns about the mother, the father brought up an incident in which he alleges the mother nearly drowned Y (as a baby), and further that the mother leaves all three children alone every time she has work. At the end of the hearing, the father sought an order that the mother undergo a mental health assessment. He said it was “the only way you are going to work out what her issues are, why she is making things up and just harassing me all the time.”
However, there is no evidence to support the concerns alleged by the father. Furthermore, for reasons already given, I accept what the mother says to be true, and I find such assertions of the father to be a further example of family violence committed by the father.
Views of the children
All three children attended the CIR, although Z was not formally interviewed due to her young age.
Ms E reports the children had nothing they wanted to change about the mother. When interviewed by the ICL, the children reiterated their sense of safety and security in the mother’s care.
In terms of the father, Ms E reported in the CIR as follows:
[X] and [Y] both informed that they used to visit [Mr Williamson] at his home, the caravan located on a friend’s property. [X] indicated that [Mr Williamson] is “not too bad” towards the children, whilst [Y] suggested he is “nice and funny.” The children reported that he made “bad choices” however, and frequently denigrated [Ms Murphy] to them. The children described feeling frustrated and annoyed when [Mr Williamson] spoke poorly about [Ms Murphy] during their visits. They further advised that he did not necessarily participate in activities with the children or take them to any places; and he was sometimes hard to awaken.[17]
…
The children indicated that they generally felt safe during spend-time with [Mr Williamson] and did not have a particularised understanding of their parents’ dispute. They shared somewhat apprehensive wishes that they resume communication and spend-time with [Mr Williamson]. [X] worries about [Mr Williamson] and wonders what he is doing in their absence; whilst [Y] hopes he will do good things with the children and not be rude to [Ms Murphy].[18]
[17] CIR at [19].
[18] CIR at [23].
The children’s views of the father are consistent with the mother’s evidence that she has tried to shield the children from the ongoing conflict and encouraged them to have a positive view of their father. Under cross-examination by the ICL, the mother said she would always say that the father was a good dad and that “people can change” and would “paint a perfect picture” as she did not want her children to see him in a bad light. The comments made by the children are proof that to a large degree she has been successful in this endeavour.
As a result, Ms E was of the opinion that the children “maintained an idealised and hopeful view of their father and their relationships with him.”[19]
[19] CIR at [45].
For this reason, the court should be cautious about placing much weight on the children’s expressed comments and views.
Ability to meet the children’s needs
The father’s lifestyle is clearly one of chaos and instability. The father lives in a caravan which he had been required to move twice in a three-week period just prior to the trial commencing. The mother gave evidence that her understanding is that the father was forced to move the caravan from where it was located three weeks ago. The father told the court that the night before the trial, due to “domestic violence”, he had again had to (or would be shortly), relocating the caravan. The mother understood that when the children spent time with the father, they either slept on a spare mattress, or all shared the same bed in that caravan, and that the caravan did not otherwise have any bathroom facilities. The mother’s evidence is that the father would leave the children unattended in the caravan; that she had to provide food for the children whilst in the father’s care, and further; that he did not change Z’s nappies (noting the last time he saw Z was two years ago).
The children also told the mother about occasions where they have been unable to awaken the father. The mother’s evidence is that she attributes this to the father “coming down” off drugs, and that she had recognised this because her mother had been addicted to drugs.
In terms of the father’s ability to meet the children’s needs, given his mental health and substance abuse issues, Ms E said as follows:
…Parents experiencing these difficulties may present as unpredictable in terms of their emotional availability and reactivity. They also often have trouble prioritising their children’s needs. This can manifest as poor or inadequate basic care and psychological, physical, and environmental neglect. Their children may experience their parenting as inconsistent and unpredictable; and have trouble establishing trust and feeling safe. Such parents can also present with additional associated risks, such as criminal activity and unsavoury social networks that can place a child at additional risk of harm.[20]
(Emphasis added)
[20] CIR at [43].
I note further, that the children all each have special needs which make them all the more vulnerable.
On the other hand, the mother admits she has been diagnosed with depression but there is no evidence to suggest this has impacted her ability to meet the children’s needs. In relation to the mother, Ms E opined:
The history of this matter suggests that [Ms Murphy] has been meeting the children’s needs and has engaged with supports as needed to increase and enhance her parenting capacity and competency.[21]
[21] CIR at [44].
Ms E described the children as presenting as “polite and friendly children with beautiful manners.”[22] Given the mother has been the children’s primary carer for most of their lives and their sole carer since at least March 2023, this is a credit to the mother, noting the mother is still relatively young, and all three of the children have special needs. The fact that X is now only about two or three years younger than the mother when she became pregnant with him, puts this in perspective.
[22] CIR at [13].
Benefit to the children of having a relationship with their parents and other significant persons
The mother’s evidence was that the paternal grandparents are heavily involved in the children’s lives. They currently live in Town K, about a one-hour drive (or 80-kilometre distance) from Town B and see the children at least once per fortnight. She described X and Mr C, the paternal grandfather, as “fishing buddies” who fish “everywhere and anywhere.” She said that Mr C has taken on “the father role model” for the children. The mother described Ms D as “an amazing grandma” who is always there for the children “no matter what” and that she can reach out for the support of both grandparents at any time, no matter the time “day or night.”
Ms E reported:
The children shared warm and affectionate accounts of the paternal grandparents, who appear to be a source of comfort and support.[23]
[23] CIR at [22].
First Nations heritage (section 60CC(1)(b) and (3))
The parties each have Aboriginal heritage, but according to the CIR they are yet to “meaningfully explore this aspect of their identities.”[24]
[24] CIR at [6].
DETERMINATION
As described in Deiter & Deiter [2011] FamCAFC 82 at [61] as follows:
Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.
Pursuant to the Full Court in Isles & Nelissen [2022] FedCFamC1A 97, a risk of some occurrence may be tolerable, but an unacceptably high risk of the same occurrence is not.[25] I must also determine whether any risk can be ameliorated.
[25] Fitzwater v Fitzwater [2019] FamCAFC 251 per Austin J at [148]-[149] as endorsed by the Full Court in Isles & Nelissen [2022] FedCFamC1A 97.
Ms E identified three key concerns, being the father’s drug use, the father’s mental health issues, and family violence committed by the father. Ms E urged the court to take a cautious approach pending the father addressing the issues. The father has provided no evidence he has addressed, or even attempted to address these issues, despite court orders that he do so. On the contrary, he continues to blame the mother for his failure to have any ongoing relationship with the children.
As stated in Ms E’s report:
[Mr Williamson] impresses as a parent who does not have insight into the identified risk issues and the impacts of his behaviour on the children and their primary caregiver. His insight is limited to the extent that he disclosed his use of illicit drugs; yet continues to perceive efforts to monitor this risk as an act of abuse against him. The totality of [Mr Williamson]’s narrative indicates that he is blaming [Ms Murphy] for his behaviours and involving the children in the dispute, rather than taking responsibility for his behaviour and trying to create changes.[26]
(Emphasis added)
[26] CIR at [48].
Furthermore, it was Ms E’s view that:
With respect to [Mr Williamson], it is assessed that his difficulties regarding his mental health and abuse of illicit drugs compound the family violence risk, exacerbating the likelihood of family violence behaviours.[27]
[27] CIR at [39].
For all of the aforementioned reasons, I find the father poses an unacceptable risk of harm to the children.
In terms of amelioration of this risk, the father has not abided by the existing orders to do drug screens, a psychological assessment or a men’s behavioural change course and has clearly indicated that he views such requirements as “nonsense” and an attempt to control him. There would therefore be no point in making any such further orders.
Furthermore, the April orders provided for the parties to apply to a supervised contact centre.[28] Whilst the mother completed her part of that enrolment, the father failed to do so. The mother and ICL no longer support such an order. The mother says she has grown impatient with the father’s ongoing breaches of the IVO and that he has had his chances. In any event, the father has not put forward any proposal for supervised time, detailing where it would occur and who would pay for it.
[28] See orders 4 and 5 made by Judicial Registrar Dixon dated 17 April 2024.
The father seeks an order that he be able to communicate with the children at any time. He said that he should not be limited to exact days or times. This is another example where the father wishes to be able to impose himself on the mother’s life without any notice to her. Furthermore, I find that any form of communication is likely to lead to the father further denigrating the mother to the children. It is also likely to lead to a further undermining of her parenting. The mother described in her evidence how the children looked up to their father and no matter what he said they followed him even if she said no. The mother described the father in her evidence as “manipulative” and that “he always thinks he is right” and if challenged he would “get angry, aggressive and yell.”
For all of the above reasons it is not in the best interests of the children to have any contact or communication with the father unless agreed to by the mother.
In terms of the other orders sought by the father, he proposes an order he undergo urine drug testing each week, but at the expense of the mother. As the father will have no contact or communication with the children, I see no reason to make such an order. Likewise, the father sought an order that he attend upon a parenting course. If the father seeks to gain knowledge about parenting, then that is a matter for him.
The father also seeks an order the mother attend some form of counselling. The mother has attended counselling in relation to her exposure to family violence, however, whether she needs any further assistance is a matter for her. Otherwise, there is no evidence she has any ongoing mental health issues that pose a risk to the children or interfere with her parenting.
In regard to parental responsibility, the father asserts the parties should share responsibility for decision making for the children because, as he said from the bar table, “there is no reason for either party to have “more power.” It is apparent from this statement and from other comments made by the father that he views the parenting orders as a means of gaining and losing “power.” This lends further support to the need to protect the mother from the inherent power imbalance in the relationship.
Given the family violence the father has committed, it is not in the best interests of the children to make an order for the parents to have joint responsibility for long term decision making for the children. As such, I propose to make an order for sole responsibility for decision making and given that the mother is the primary, and indeed, sole carer of the children, this should be given to her. In this regard I echo their Honours Austin and Williams JJ in the matter of Pickford & Pickford [2024] FedCFamC1A 249, “any other result would be absurd.”[29]
[29] Pickford at [83].
Likewise, the mother ought to be able to obtain passports for the children and travel out of the jurisdiction without obtaining the permission of the father. I wholly reject the orders proposed by the father that the parties be restrained from travelling out of the state without the other parents’ permission. Leaving aside the court’s jurisdiction to make such an order, this is a further indication in my view of the father’s desire to control the mother. The father submitted from the bar table that the mother intends to go to Country L and may stay there. However, I accept the mother’s evidence that she has no intention of living outside of Australia. It is also likely in my view that if the mother required the father’s permission to travel, then this would lead to further litigation, which is not in the best interests of the children. As such, I will make the travel and passport orders as sought by the mother and supported by the ICL.
For all of the aforementioned reasons, I make the orders at the commencement of this judgment.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 3 June 2025
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