Articles by Marr Family Lawyers Wollongong to assist you in obtaining useful information and support services in respect to your family law matter.

Recent Family Law Judgement - Willmore & Menendez [2022]

consent orders

Please note that this article contains discussion of family violence, including psychological, emotional and sexual abuse.

Determining what is in the child’s best interests involves application of various considerations, articulated in the Family Law Act. Included in these considerations is whether an unacceptable risk of harm exists. Harm is not merely physical, but also includes psychological and emotional harm. This was addressed in the recent appellate judgement, Willmore & Menendez [2022].


In this case, the Federal Circuit and Family Court of Australia held that it was open to the primary judge to find that the mother posed an unacceptable risk to the child. Nonetheless, the Court found that inadequate reasons were given as to the making of specific orders relating to an extended supervision period.


The parties, Ms Willmore and Mr Menendez, commenced their relationship in 2013 and had one child together. Following separation, the child remained in the primary care of the mother. Interim parenting orders were made in March 2020, which were complied with by the mother until about June 2020. Her opposition to the father and child spending time together was predated on allegations of sexually inappropriate behaviour.


The primary judge found that there was no unacceptable risk to the child in the care of the father but that there was an unacceptable risk occasioned to the child by the mother. Her Honour said the mother had exposed the child to psychological and emotional harm, engaging in conduct calculated to deprive the child of a meaningful relationship with a loving parent. This conduct included fabricating stories to portray herself as victim and manipulating evidence. The orders made were that the father retain sole parental responsibility and that the child live with him, spending time with the mother on a supervised basis for a period before transitioning to unsupervised time.


The mother appealed the decision on six grounds, only one of which was found to have merit insofar a sit related to the primary judge’s orders regarding the time, and in which circumstances the child would spend with her. Although her Honour gave adequate reasons for ordering that the child spend no more than two hours weekly with the mother for a three-month period, it was the Court’s view that it was not apparent why the primary judge determined that the child’s time with the mother should follow such a highly restricted regime for the two years following. The Court also decided that Her Honour’s reasons did not clearly explain how the child’s best interests would be advanced by an immediate re-introduction of unsupervised overnight time for continuous days after this time. This was relevant in the circumstances given that there were no orders for the mother to undertake therapy or counselling.

The case was remitted for rehearing before a different judge in relation to the issue of the time, circumstances and conditions that the child should spend with the mother.

If you are in immediate danger, please call 000. Alternatively, if you require family law advice or are experiencing family violence, please reach out to our office and one of our solicitors can assist you.