Briginshaw v Briginshaw

1. Pursuant to section 65Y of the Family Law Act 1975 (Cth), the children X born in 2017 and Y born in 2020 be permitted to travel in and out of the Commonwealth of Australia in the company of the mother without the father's consent.
2. Pursuant to section 11(1)(b)(i) of the Australian Passports Act 2005, the mother is authorised and permitted to apply for, renew and receive Australian passports for the children X born in 2017 and Y born in 2020 without the written consent of the father.
3. Any passports issued in the children's names will be held by the mother.

1. The mother and father do all acts and things necessary, including signing all required documents, to obtain a birth certificate for Y and for such purposes:

(a) Within two (2) days of the date of these Orders, the solicitors for the mother are to provide to the solicitors for the father all documents required to be signed by the father; and

(b) Within seven (7) days of the date of these Orders, the solicitors for the father are to return to the solicitors for the mother the documents duly signed by the father.

1. Each party shall do all such acts and things reasonably required by the other (including the signing or execution of all necessary documents) to give effect to the provisions of these orders within 14 days of being requested in writing to do so.
2. If either party refuses or neglects to execute any Deed or Instrument necessary to give effect to these orders, within 21 days the Registrar or Deputy Registrar of the Federal Circuit and Family Court of Australia at Melbourne be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute the Deed or Instrument in the name of that party and do all such acts and things necessary to give validity to the operation of the Deed or Instrument.

1. All outstanding applications and responses are otherwise dismissed.
2. The appointment of the Independent Children's Lawyer is hereby discharged.

1. Pursuant to section 65DA(2) and 62B of the Family Law Act 1975 (Cth), 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 the 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.

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).

1. This is a parenting matter concerning two children, X ("X") aged eight, and Y ("Y") aged five, together referred to as the children ("the children").
2. The children currently live with the respondent mother, Ms Morton ("the mother"), and have not spent any meaningful time with the applicant father, Mr Livingstone ("the father"), since October 2021. The children have also spent no time with the paternal family since an incident in February 2023 ("the February 2023 incident"). The mother says that on that day X witnessed the father put a gun to the mother's face and threaten to kill her. The father denies the mother's version of events and says that on that day he was attacked by the mother's boyfriend.
3. It is common ground that whatever happened during the February 2023 incident, that X is now in fear of her father and has significant anxiety. Y has no direct memory as she was not present during the February 2023 incident but has taken on X's narrative about the father. Both children have told the Independent Children's Lawyer ("the ICL") they do not want to see the father or spend any time with him.
4. The position of the ICL and the mother is that there should be no time between the father and the children. The father seeks to resume spending time but acknowledges that any time would need to initially be supervised.
5. Notwithstanding there is an ICL, for convenience I shall refer to the parents as "the parties".

1. The father says the parties met in 2016 and began living together shortly thereafter. The mother says that they met in August 2016, when she was just 20 years of age. She says she had been living on the streets and that the father essentially kidnapped her thereby preventing her from seeing her friends and family "for a very long time".[1] The mother said she feared for her safety and that of her family if she tried to leave.
2. The mother says she was subject to the father's "sexual demands,"[2] and that in 2016 she became pregnant with X. She says further that in 2017, when the father was incarcerated, that his parents took her to a property they owned and held her against her will. The mother says she was kept in a shed by the parents and that she was threatened that if she tried to leave the father would harm her. She says the paternal grandparents controlled her movements and monitored her pregnancy. The mother says after X was born in 2017, she moved to live with the paternal grandparents in their home in Suburb B. When the father was released from prison, she moved with the father and X to a rental property in Suburb C.
3. The mother's narrative is on one view somewhat incredulous, however, given the parties both come from backgrounds involving serious criminal history, it is not beyond the realms of possibility.
4. The mother says that after Y was born in 2020, the father's drug use and aggressive behaviour increased. She says following an incident in which she called the Crisis Assessment and Treatment Team, she left the home with the children on 1 October 2020.
5. The father believes the mother was having an affair. The mother denies this.
6. The father subsequently re-partnered with Ms D ("Ms D") about four years ago and now lives with Ms D, her three children being Mr E aged 20, F aged 14, and G aged 11. They have one child together, J ("J"), who is aged four.
7. The mother says that following separation she continued to facilitate time between the children and the father, with the paternal grandmother present. Her oral evidence was that the father was not consistently available. She says he would want to spend time with the children after extended periods of not having seen them, but she would insist that the father commit to regular phone calls before he did so and he was not able to do this.
8. The mother says that time between the children and the father ceased in October 2021, when X returned hysterical from a visit with the father, claiming the father had struck her. The father denies ever hitting either of the children.
9. The mother says that she did, however, continue to facilitate the paternal grandmother spending regular time with the children most weekends, either by way of babysitting when the mother was working or just to spend time with the children. The mother also says the paternal uncle was frequently involved in these visits. The father says these visits were less frequent than asserted by the mother but concedes that they were occurring.
10. All time ceased with the paternal family following the February 2023 incident.

1. This matter proceeded largely in person at the Dandenong Registry with some witnesses permitted to give evidence by Webex. Although there was the occasional glitch in that process, I am satisfied it did not interfere with the fair running of the hearing.
2. The father relied upon the following documents:
   • his amended application for final orders filed 17 April 2025;
   • his trial affidavit filed 13 October 2025;
   • his case outline filed 6 November 2025; and
   • the affidavit of Ms D filed 13 October 2025; and
   • the affidavit of Dr J ("Dr J"), psychologist, filed 28 April 2025.
3. The mother relied upon the following documents:
   • her amended response to final orders filed 17 April 2025;
   • her trial affidavit filed 13 October 2025; and
   • her case outline filed 6 November 2025.
4. The ICL relied upon the following documents:
   • the family report of Ms L ("Ms L") dated 4 September 2025 ("the family report"); and
   • the affidavit of Mr K ("Mr K") filed 11 December 2024.
5. The following exhibits were also tendered in this matter:
   • M1 - LEAP incident report summary record from Victoria Police document dated August 2024;
   • M2 - Father's Victoria Police 14-page criminal history document;
   • M3 - Mother's Victoria Police criminal history document;
   • F1 - Ms D's Victoria Police criminal history document;
   • F2 - LEAP incident report summary record from Victoria Police in relation to June 2020 within the August 2024 section 67ZBE report;
   • ICL1 - 11-page Department of Families, Fairness and Housing ("DFFH") report dated 29 November 2024;
   • ICL2 - Family incident report from Victoria Police dated February 2023 within the August 2024 section 67ZBE report;
   • ICL3 - screenshot of email sent by Registry of Births, Deaths & Marriages to the mother sent 26 April 2021; and
   • M&ICL1 - joint minute of the mother and ICL (including father's proposed consent orders).

1. The father and Ms D were problematic witnesses whose evidence was at times inherently unbelievable and contradictory. This was particularly so when it came to the February 2023 incident. They essentially provided four different versions of events, the versions contained in each of their affidavits and the versions given in the witness box. For example, the father said in his affidavit that the mother's boyfriend, Mr N ("Mr N"), had approached him and his partner, Ms D, whilst they were standing outside the car and that Mr N had two knives.[3] Whereas, in his oral evidence, the father said Ms D was inside the car when Mr N approached with two samurai swords. The father says Mr N then tried to attack Ms D through the window and was grabbing at her with both hands.
2. On the other hand, Ms D, who had not been in the courtroom whilst the father was giving evidence, denied that Mr N had attacked her whilst she was in the car, and said the windows were up and the doors locked.
3. Furthermore, none of the parties could agree on what kind of bladed object was being used - with the father describing it as a samurai sword and/or a knife, and Ms D describing it as a machete and/or a knife. The father and Ms D also gave differing evidence about whether they discussed calling the police.
4. The father also denied being in possession of a firearm when raided by the police after the February 2023 incident, despite being charged with and pleading guilty to that offence. The father said he had proof in his brief of evidence that the item in question was not a firearm, however, the father did not produce that brief of evidence. I simply do not accept that a man with such an extensive criminal history, and a significant grievance against the mother, would plead guilty to possessing a firearm in circumstances where he could easily clear himself of the charge. This is especially considering he knew it would likely lead to further incarceration.

1. The mother gave evidence in a much more straightforward and convincing manner. Although her narrative was quite extraordinary, she was not seriously challenged on it and as I have stated her version of events cannot be dismissed out of hand given the parties' history. Whilst there were some contradictions, these were not to the same extent as the father and did not go to the heart of the allegations. She also answered questions quickly and without any hesitation.
2. The mother's presentation was also consistent with a relatively young woman who has had a difficult life, and who has been very much worn down by this process and her experiences of the father. Significantly, she maintained her version of what occurred during the February 2023 incident, which was largely consistent with earlier versions provided to the police and to a certain extent with the responses X gave in her police interview.
3. For these reasons where the mother's evidence differs from the father and Ms D, I prefer that of the mother.

1. The father attended upon Dr J for counselling, following a referral from Mr K who conducted the psychological assessments of the parties. The purpose of the counselling was to address issues such as impulse control, distress tolerance, conflict resolution, practical problem-solving, and to develop skills for managing emotions and interactions. Dr J prepared a report on behalf of the father. On 9 September 2025, Dr J was subpoenaed by the mother to produce his notes from that counselling to the court. Dr J did not comply with that subpoena. On the second day of the trial, I directed that Dr J bring his notes to court. Notwithstanding this direction, Dr J attended court the third day of the trial without his notes and had to be sent away to get them. Upon his return, Dr J was briefly cross-examined by the mother's counsel during which he was confrontational and argumentative with the court, and counsel for the mother. Dr J also insisted on standing up whilst giving evidence, with his hands in his pockets, in a manner which appeared to be intended to intimidate counsel for the mother. The questioning quickly came to an end.
2. Dr J's presentation caused me to have great concerns about his role as a counsellor appointed to assist the father with impulse control and to manage his emotions. Dr J was also prepared to say, not having met the mother or the children, that he emphatically believed the father when he said he did not have a gun during the February 2023 incident and assessed him to be almost a zero risk to the children.
3. For all of these reasons, I am not satisfied that Dr J has the requisite skills or insight to have provided the father with any meaningful counselling.
4. Dr J's evidence was of no assistance to the court.

1. The parties attended upon Mr K for psychological assessments and Ms L for the family report. Both experts were required for cross-examination, however, neither their credibility nor their recommendations were seriously disturbed in that process.
2. I found the evidence of both Mr K and Ms L to be of great assistance in this matter.

1. Section 65D of the Family Law Act 1975 (Cth) ("the Act") directs the court to make such parenting orders as it thinks proper. The best interests of the children remain the paramount consideration when determining parenting matters. Section 60CC of the Act sets out the matters the court must take into consideration when assessing best interests as follows:

Determining child's best interests

(1) Subject to subsection (4), in determining what is in the child's best interests, the court must:

(a) consider the matters set out in subsection (2); and

(b) if the child is an Aboriginal or Torres Strait Islander child - also consider the matters set out in subsection (3).

General considerations

(2) For the purposes of paragraph (1)(a), the court must consider the following matters:

(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.

1. The court must also consider, pursuant to section 60CC(2A) of the Act, 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 applies to, or has previously applied to the child, or a member of the child's family.
2. Authorities have made it clear that whether on an interim or a final basis, if one of the factors under section 60CC are determinative of the matter, the court need not address all of the remaining factors.
3. Section 60CG of the Act further requires a court when considering what parenting order to make, to ensure that whatever order is made does not expose a person to an unacceptable risk of family violence and is consistent with any family violence order.
4. I have taken all of these matters into consideration, although I may not specifically refer to each of them.

RISK TO THE SAFETY OF THE CHILDREN AND/OR THEIR CARE GIVERS

1. In this matter, the risk the father poses to the safety and welfare of the children and their mother is the primary concern. Although Mr K identified that both parties had Cluster B personality traits, and recommended counselling for both parties, the father was not asserting that the mother was a risk to the children or that she otherwise had any deficits in her parenting. Indeed, such an assertion would be inconsistent with his case as he was not challenging her ongoing role as the children's primary carer.
2. However, the mother has raised extremely serious allegations against the father. If the mother is to be believed, she was subjected to a gun being held to her head and was in fear for her life.
3. Given the seriousness of the allegations, although the standard of proof is on the balance of probabilities, the court must apply the principles set out in the High Court case of Briginshaw v Briginshaw[4] in what has become known as the "Briginshaw test". The Briginshaw test is applied in civil cases involving serious allegations. Although the standard of proof remains to the balance of probabilities, the court is urged to consider the seriousness of the allegations and the potential consequences if found proven. The more serious the allegations and/or the consequences, the more scrutiny that should be applied to the evidence.

1. The father described the mother's version of the February 2023 incident to Ms L as "a complete fabrication".[5] He says that the mother has imposed her false narrative onto X who now believes it to be true. He says that X has in turn passed this version of events on to Y, and that the mother has exposed both children to ongoing denigration of the father.
2. However, as already stated, the father and Ms D have numerous versions of what occurred on this day. What appears to be common ground as and between them is as follows:

(1) The paternal grandmother was babysitting the children at the mother's home;

(2) The father and Ms D drove to the mother's home (with their baby J) to collect keys to the paternal grandmothers' property;

(3) The father and Ms D parked their vehicle about four or five houses away near a service lane;

(4) The paternal grandmother came to meet the father, who was standing outside the car;

(5) The father was attacked by the mother's partner Mr N with some sort of bladed weapon;

(6) The father jumped over the barrier next to the car and ended up about six feet down the embankment;

(7) The father received significant injuries in this fall;

(8) The paternal grandmother pushed Mr N away from the car and towards the mother's home;

(9) The paternal grandmother then left the home with the father and Ms D;

(10) Neither the father, his partner nor his mother called the police; and

(11) Notwithstanding his injuries, the father did not seek any medical help.

1. Leaving aside the many inconsistencies between the father and Ms D, the event as summarised raises several unanswered questions including:

(1) How Mr N knew the father was in the vicinity of the mother's house;

(2) Why Mr N attacked the father seemingly out of the blue;

(3) What made Mr N so angry with the father that he set upon him with bladed weapons;

(4) How the paternal grandmother was able to push Mr N away despite him being in possession of the bladed weapons;

(5) Why the paternal grandmother would push Mr N, allegedly in a heightened state and carrying weapons, back towards the house where the children were still present.

1. The court is left not only with various versions of the event but also with a narrative which was inherently difficult to understand. Furthermore, the paternal grandmother, who was present in court on each day of the trial, did not give evidence. Pursuant to the rule in Jones v Dunkel [1959] HCA 9 ("Jones v Dunkel") the court may be asked to draw an inference that a witness who is available to give evidence but is not called to do so, would not have given evidence in support of a party's case. It is not an automatic inference. Murphy J in Lavell & Lavell [2012] FamCA 34 at [130] summarised the three conditions that must be met to satisfy "the rule" in Jones v Dunkel, these being:

the "missing witness [or evidence] would be expected to be called by one party rather than the other (which implies that the witness must be available to give evidence)"; the "evidence would elucidate a particular matter, which is a live matter at the trial" and "the absence [of the evidence] is unexplained". (ASIC v Rich at [449]).

(Citations omitted)

1. In this case, the paternal grandmother was present during this key incident, clearly physically available to give evidence, and no explanation was given as to why she was not called. I infer from this that her evidence would not have supported the father's version of events.
2. On the other hand, although there were inconsistencies in the mothers' evidence as to what occurred during the February 2023 incident, the key elements remained the same. She says that on the day of the incident, the paternal grandmother was minding the children at her home whilst she was at work. The mother said she received a call from X saying, "Mummy, daddy's here." As the father had not seen the children since October 2021 and had turned up without her knowledge, she immediately left work and drove home. On arrival, she saw a vehicle in the driveway and the father sitting in the front seat. She alleges that when she went up to the car and told the father to leave, he started yelling at her. She says at this time, Ms D passed the father a gun which he held to her face. She states his finger was on the trigger, and she froze in fear. The mother says that X was outside the house and witnessed the event.
3. For reasons already stated, I prefer the mother's evidence as to what occurred on this day to that of the father and Ms D. I also find it to be inherently more plausible. Furthermore, when the police raided the father's home, they located a firearm and ammunition hidden in the wall of his home. The father's evidence is that this was not a complete firearm but rather a barrel and a forearm without a trigger and so it was incapable of being fired. He added that it was a family heirloom given to him by his grandfather. However, he could not explain why such a sentimental item was kept hidden in the wall of the house, nor could Ms D who had lived in the house since 2013.
4. The father was subsequently charged with possessing a category A longarm unlicensed firearm, unlicensed storage of firearm and ammunition, and possessing cartridge ammunition without license, as well as making threats to kill, and reckless conduct endangering life with respect to the mother. The charges relating to the mother were ultimately withdrawn. The mother said this was because she was not prepared to put X through being cross-examined. (The father confirmed he had required that to occur). I accept that evidence.
5. In regard to X, Ms L noted that X had consistently repeated her version of events both in the two court reports, but also at school and with her counsellor at O Centre. Ms L considered it unlikely that X would "consistently repeat such a story without their being truth to it."[6] Although parts of X's police interview were inconsistent, she was only five years old at the time. The mother also conceded that the driveway was long enough for about 8 to 10 cars, so X would have been some distance away.
6. I also noted that after an investigation, the DFFH substantiated physical and emotional harm to the children from the father based on the possession of an unauthorised weapon, perpetration of family violence, and likely substance use at the time.

Findings in relation to the February 2023 incident

1. I am unable to find based on the evidence whether any incident involving Mr N actually occurred. I cannot rely on the evidence of the father, or Ms D, and I have drawn an inference that had the paternal grandmother given evidence it would not have supported the father's case.
2. However, I am satisfied that there is sufficient evidence to the level required under the Briginshaw test to make the following findings:

(1) That the father attended the mother's home whist the paternal grandmother was babysitting the children and the mother was at work;

(2) That X called the mother at work and told her the father was present;

(3) That the mother returned to the home and confronted the father and his partner, who were by that time sitting in his car at the front of the home;

(4) That the father pointed a firearm at the mother's face which caused her to be terrified; and

(5) That X witnessed the father pointing what she believed was some sort of weapon at the mother's face and that her mother was fearful.

1. Having made these findings I must now turn to what risk these findings may pose to the children and the mother.
2. The process of risk assessment was summarised in the case of Deiter v 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.

(As per original)

1. Pursuant to the Full Court in Isles & Nelissen [2022] FedCFamC1A 97 I must also determine whether any risk can be ameliorated through the making of other orders.
2. The father's case is that even if the mother's version of events is correct, he has not committed any offences since. In particular, he says he has not breached the intervention order ("IVO") which was finalised in late 2023. I note, however, that the mother alleges an extremely serious breach of that IVO. She says that in January 2025, the father arranged for two men to attend her home. She says that they sent the children out to play and one man raped her. She says that at the conclusion he said to her "this should take you and your fancy lawyer down a peg or two_"._ This led her to believe the men were sent by the father. The mother reported this matter to the police, but they were unable to find on the evidence that the event occurred. Given the seriousness of the allegation, and that the level of proof pursuant to the Briginshaw test is high, I am unable to find on the evidence that this event occurred.
3. However, in assessing future risk, the February 2023 incident must be assessed in the context of the allegations the mother makes about family violence during the relationship. These allegations were summarised by Ms L in the family report as follows:

29. [Ms Morton] described the relationship with [Mr Livingstone] as characterised by family violence behaviours perpetrated by him, describing the commencement of the relationship as an abduction more so than a relationship. She stated that she was a homeless, drug addicted adolescent, that [Mr Livingstone] coerced her into living with him immediately, moved her around to different areas, threatening her family if she was to leave, was verbally abusive towards her, controlled her movements and finances, and perpetrated multiple sexual assaults.

....

[Ms Morton] described that her own childhood experiences left her with the view that drug use and violence were normal, and that during her relationship with [Mr Livingstone] she hadn't been in a place mentally where she could fully grasp and understand what was happening, however that over time she has processed her experiences and developed her understanding of [Mr Livingstone]'s behaviour and how it impacted her own ability to generally function and parent [X] and [Y]. [Ms Morton] described the children having experienced [Mr Livingstone] shouting and behaving erratically, and that while they were very young, they appeared apprehensive at times around him and became hypervigilant as a result of his frequent shouting, causing them to feel fearful.

30. [Ms Morton] described not having sought help or called police during the relationship, due to feeling helpless, and given her own trauma history as a young person, not having confidence in police or any hope of getting help for herself and the children. [Ms Morton] advised that police attended on one occasion just prior to separation, when an argument occurred over [Y]'s feeding patterns, where a neighbour heard shouting and called police. [Ms Morton] described occasions of [Mr Livingstone] waving a gun around and making threats to her towards the end of the relationship. She described that [Mr Livingstone] was not directly physically violent towards her, however that he frequently had other people in the home, that there were a lot of fights and violence occurring around her that [Mr Livingstone] engaged in, and that he always had various weapons and dangerous items around the home that left her feeling unsafe.[7]

(As per original)

1. I note that the father completely denies the allegations and asserts that there has only been one report to the police, being a few days after Y was born. Furthermore, the mother concedes she told the police on that occasion that everything was fine. However, the mother says, "I was fearful they would arrest the father and I would then be in trouble when he returned".[8] I accept that evidence of the mother, which is consistent with the findings I have made about the February 2023 incident. The court is also aware that family violence most commonly occurs behind closed doors and is often not reported to authorities. Furthermore, evidence which is inherently reliable need not be corroborated by other evidence for it to be accepted by the court. I find that the father subjected the mother to family violence, as described by her in her evidence, and as reported to Ms L.
2. Based on my findings about the February 2023 incident, the history of family violence and the father's other violent acts coupled with the father's failure to take responsibility for any of his behaviour, that there is a high risk the father could harm the mother and/or the children in the future and that if he does so that this could be fatal.

1. Mr K recommended in his psychological assessment of the father, that there was a need for "specific intervention" and "a risk management plan", with the father being encouraged to "engage in treatment with a psychologist to address Cluster B personality vulnerabilities," for "improved distress tolerance, conflict resolution, practical problem solving and impulse control".[9]
2. As already discussed, Mr K's assessment of the father was not seriously challenged. Furthermore, for reasons already provided, I do not believe that the father gained any benefit from his sessions with Dr J. The question is whether the father would now benefit from counselling with a different counsellor. Having heard the father give evidence and undergo cross-examination, I am of the opinion that he would not. Despite attending a 20-week men's behavioural change course, on top of undergoing counselling with a "Ms P" for drug and alcohol and other lifestyle issues, he does not appear to have gained any insight into his behaviour. The father maintained throughout his evidence that he did not have anger management issues and completely denied any family violence.
3. In addition, notwithstanding his criminal record, the father also minimised his other violent offending, asserting that in almost every case, that he was responding to being attacked or defending someone else. A particularly concerning example of this was the father's attendance at a property in City Q with a friend to retrieve items alleged to have been stolen from the friend. During this incident, the father's friend pulled a gun on the occupants of the home. On the father's version of events, he restrained his co-accused and freed the occupants of the home. Nonetheless, the father was incarcerated for his involvement in this incident. There is no evidence the father has any insight into any of his violent behaviour or the impact on the mother and children in this case such that he is likely to benefit from counselling, even with an appropriately qualified and experienced practitioner.
4. Given the risks I have identified with the father, any orders for time would need to include ongoing supervision. However, whilst this may ameliorate the risk to the children's physical safety, the question is whether there remains a risk of emotional or psychological harm to the children, in particular to X who it is common ground remains in fear of the father. The mother says that X continues to be traumatised by what she saw and has nightmares most nights about the event.[10] The mother annexes a letter to her affidavit from O Centre confirming that X is presenting with trauma symptoms and that she is hyper-vigilant about safety, experiences nightmares where her father kills her mother and family, and sometimes dreams she must kill her father to save others.[11] An email from X's school reports X has frequently retold the story of her father pointing a gun at her mother, that she often says she is scared of her father and fears he will come to school, that she recounted violent dreams involving her father with a gun or knife, that she checked doors at school to ensure he could not get in and needed reassurance he could not get out of jail.[12] The school noted that with counselling support her anxiety began to lessen.[13]
5. Ms L was clear that if X were made to see her father, even under supervision, that this may have a long-term impact on her relationship with her mother and her trust of adults generally. She noted as follows:

If time with [Mr Livingstone] is ordered, and [X] and [Y] are to attend to be reintroduced to their father, given [X]'s expressed fear, she is very likely to experience a high level of distress in being told that she will see [Mr Livingstone], and this process could result in additional trauma for [X], and also for [Y] who is likely to experience [X]'s distress, and take some of this on for herself. Given [X] is clearly expressing her fear and worry, if [Ms Morton] is required to take the children to see [Mr Livingstone], [X] is likely to feel unheard and unprotected by her primary caregiver, and there is potential that this will have an impact on her sense of safety and stability in her primary care arrangement, which could have long term impacts on her emotional wellbeing and sense of safety and trust in relationships.[14]

....

It appears likely that should time recommence, [X] particularly would experience an impact to her emotional wellbeing and sense of safety, which may filter down to [Y] and her experience, and that the risk of destabilising [Ms Morton]'s capacity to maintain the children's stability is high.[15]

(Emphasis added)

1. For these reasons it is not in the best interest of the children to have supervised time with the father nor to otherwise have any contact or communication.
2. The final consideration is whether the father ought to be permitted to send the children gifts, cards and letters and/or whether he should receive information such as school reports. The mother says that in the past the father has never shown any inclination to send the children any gifts or cards, and that she has provided gifts on his behalf so the children did not miss out. However, given there will be no contact or communication it is important that the children do not lose all connection to their father. For this reason, I will make this order but limit it to Christmas and birthdays. The mother was prepared to obtain a post office box for this purpose.
3. I am not going to permit the father to have access to school records. The father is not currently aware of the mother's address. Even if the mother were permitted to redact these records, small issues, such as subject availability, may reveal the location of the school. Whilst the father has known which school X attended in the past, X has recently changed schools (for reasons unrelated to the father) and the current location is not known to him.
4. In making these orders I have taken into consideration the harm experienced by children of not having a parent in their lives. As noted by Ms L:

It is noted that children growing up with an absent parent, and / or with a negative view of that parent, can be significantly impacted in their overall sense of self, identity and self- esteem, as they are at risk of taking on negative views as a reflection of self, and as such may suffer emotional harm as a result of that parent's absence from their lives. It is likely therefore that [X] and [Y] are impacted by the absence of [Mr Livingstone] from their lives and will require additional support at times to ensure their emotional wellbeing is supported.[16]

1. I have taken this into account, along with the reality that the children will not spend time with their half sibling J, which I accept would otherwise be a significant relationship in their lives. However, the detriment of not having their father or J in their lives is significantly outweighed by the risk the father poses to the children if they were to spend time with him.
2. I will otherwise make the remaining orders, including for the mother to have sole parental responsibility, by consent.
3. For all these reasons, I make the orders as set out at the commencement of this judgment.

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dorrat.

[1] Mother's trial affidavit filed 13 October 2025 ("mother's trial affidavit") at [26].

[3] Father's trial affidavit filed 13 October 2025 at [12].

[4] [1938] HCA 34; (1938) 60 CLR 336.

[5] Family Report by Ms L dated 3 September 2025 ("Family Report") at [33].

[9] Affidavit of Mr K annexing his psychological assessment filed 11 December 2024 at [90].

[10] Mother's trial affidavit at [11].

[11] See mother's trial affidavit, annexure "MSM‑01" at [19].

[12] See mother's trial affidavit, annexure "MSM-04" at [28].

[13] See mother's trial affidavit, annexure "MSM-04" at [28].