Burke & Morgan [2025] FedCFamC1F 484 | Case summary

Burke & Morgan [2025] FedCFamC1F 484 | Case summary | Zoe

[10]

The parties began living together when they married in 2011. Final separation occurred on 28 January 2024 when the father left the former family home.
The father says that the mother facilitated him spending time with the children in the post separation period until April 2024, with such time including overnight care. The father says that the mother made a report to the police around that date and the father was charged with assault arising out of an alleged incident between him and the mother that occurred in early 2024.
It appears that the father was served with a provisional Apprehended Domestic Violence Order ("ADVO") in mid-2024 (which the father recalled was a religious day).
At the time of separation, the mother and the children remained living in the former family home on B Street, in Suburb C. The parties own other real property on that street. At some point after separation, the father commenced arrangements to obtain vacant possession of one of the other properties on that street. He says that he gave notice to the tenant to vacate, and by 6 May 2024, the home was available for his occupation. He asserts that he had commenced this process prior to him becoming aware that he was the subject of an ADVO.
In mid-2024, an interim ADVO was made listing the mother and the children as protected persons and the father as the defendant. In May 2024, the father moved into B Street, Suburb C, after the interim ADVO had been varied in mid-2024, removing the children as protected persons. That property is located across the road from the former family home.
The father installed CCTV cameras at that property after he moved in. He suggests he did so for his own security. The terms of the interim ADVO at that time did not preclude him from living at that location.
On 1 July 2024, proceedings in the Federal Circuit and Family Court of Australia (Division 2) were commenced by the mother when she filed an Initiating Application seeking final and interim orders in respect of parenting matters only. On 8 August 2024, the father filed a Response to Initiating Application in which he sought orders for both parenting and property matters.
A privately funded Child Impact Report was obtained by the parties from Mr E, psychologist. That report is dated 30 August 2024 and became Exhibit 5 in these proceedings ("the Child Impact Report").
An interim hearing as to the competing interim parenting matters occurred on 1 October 2024. The parties were each legally represented at the hearing before Senior Judicial Registrar Dodson. The interim orders were made after that contested hearing.
The father was charged with a breach of the interim ADVO, following an incident relating to his attendance at a sporting event in July 2024, at which the children were in attendance. It is admitted by the father that he approached one of the children and hugged the child. Those matters were resolved in early 2025 when the father entered a guilty plea (without admissions as to the breach) and the police withdrew the assault charge. A final ADVO was made at the same time but on terms different to the interim ADVO. The father was no longer restrained from contacting or communicating with the mother. Other restraints remained in place.
Since the making of the interim orders, the father has spent limited time with the children despite the father making himself available to spend time with the children in accordance with the interim orders (save for one occasion deposed to by the father in his affidavit filed 31 March 2025 ("the father's affidavit") at [8]). As was confirmed during the contravention hearing, the last occasion on which the father spent time with the children was on 24 November 2024 (which included an overnight period of care).
On 20 January 2025, the mother filed an Amended Initiating Application in which she varied the orders she sought on a final basis with respect to the children. This included, in some instances, the introduction of a subjective limitation to the time that the children ought to spend with the father (being "or as much time as" the child "is able to deal with"). Additionally, the mother sought orders for changeover to occur by way of the children walking from one home to the other (effectively across the road) at the beginning, or end, of each period of care. For the purposes of that changeover, the mother sought orders that, unless agreed, no other family member for either party be present at that time.
The father filed his Amended Response to Initiating Application on 23 January 2025. He did not make any amendment to the final parenting orders sought by him.
The father's Contravention Application was filed on 31 March 2025.
On 29 April 2025, the mother filed an Application in a Proceeding in which she sought a range of orders, including the suspension of the spend time orders made on 1 October 2024. The mother's Application in a Proceeding was listed for interim hearing on 21 October 2025 but has since been vacated in circumstances where the matter has been bifurcated (by way of orders made on 6 June 2025). At the time of the contravention hearing, the parties had indicated that they would welcome an expedited final hearing in respect of parenting matters. Since the contravention hearing, I have made orders listing the parenting proceedings for trial in September of this year, whilst granting the parties and the Independent Children's Lawyer ("the ICL") liberty to re-list the matter for mention. I note that the ICL has recently been appointed and has sought that the matter be re-listed.

[25]

As I understood the mother's case, she contended that as a result of conduct by the father to her and, or, to the children, she was concerned for the safety and welfare of the children on each of the occasions the subject of the Contravention Application and on that basis, had a reasonable excuse for non-compliance with the interim orders. As a secondary or collateral part of her defence, the mother sought to establish that the children were opposed to spending time with the father and, by implication, that such opposition was sufficient that she could not compel the children to spend time with the father.
To understand the basis for her belief relating to the safety of herself and the children, and her defence more generally, the mother relied upon evidence relating to certain historical matters between the parties and in some instances, involving the children. The mother asserted that those past events created a proper or reasonable foundation for her belief that compliance with the orders might imperil the children (or place her safety at risk) on each of the occasions of contravention.
Particular attention was given by both parties in the conduct of the hearing to events occurring on the weekend commencing Friday 28 February 2025 and on the morning of Wednesday 5 March 2025. The mother says that those events strengthened her concerns about the safety of the children in the father's care on the occasions of the alleged contraventions. Those events are addressed in some detail later in this judgment.
Evidence relating to earlier occasions of non-performance of the spend time arrangements under the interim orders was also relied upon by each party. The mother ultimately submitted that such consideration assisted in understanding the context in which her non-compliance on the three occasions the subject of this application had occurred.
That historical focus included three other occasions of time in February this year when the children refused to go with the father from school (being on 6 February, 14 February and 20 February 2025), despite the terms of the interim orders. The father agreed that on each of those occasions, the children would not leave the school with him. He said that he spoke with the children, but they would not get into his car at school pickup. On each of those occasions, members of the school staff later contacted the mother, and she then collected the children.
The mother leads no evidence as to any steps taken by her on those three occasions to discharge her obligations under the interim orders to facilitate the children spending time with their father. Her evidence makes clear that the school contacted her to inform her that the children were declining to leave the school with the father (contrary to the interim orders), and the mother then collected the children from the school. She subsequently took no steps at all to compel the children to spend time with the father; she did not make any arrangement to later deliver the children to the father or, in some other way, ensure compliance with the interim orders.
The evidence makes clear that the mother had, at that time, formed the view - which she acted upon in several instances - that the opposition expressed by the children to spending time with their father was a sufficient basis for her not facilitating time. The reasonableness of that view is relevant to the mother's conduct on the three occasions of non-compliance the subject of these proceedings, given the defence she relies upon as to reasonable excuse.
The mother also contends that aspects of the father's conduct to her and, or, to the children in 2024 is also relevant in terms of influencing her concerns for the safety of the children and, or, informing the children's reluctance to spend time with the father.
The mother relied upon video taken from the CCTV camera at her home on 17 November 2024 - another occasion when the children refused to spend time with the father as per the interim orders. This video became Exhibit 11.
The mother gave evidence about this event in her April affidavit at [9]:

[27]

It was suggested by counsel for the mother that Exhibit 11 showed the father "grabbing the arm" of X and using force on the child. The father rejected that contention and said that he was putting his arm around the child and trying to hug him.
On this occasion, the mother had arranged for the maternal grandmother to be present to facilitate the changeover of the children. The mother was not home at the time. There is no audio available with the video. The mother did not call the maternal grandmother in her case.
I do not have evidence of what the maternal grandmother said to the father or what he said to her, nor do I have evidence about what she said to the children, if anything, to encourage their departure with their father on that occasion.
Similarly, I do not have evidence about what instructions, if any, the mother gave to her mother about ensuring that the children spent time with the father.
In viewing that video, it is clear that the father does make contact with the child around his shoulders and may be trying to embrace him as he suggests, or to direct him not to walk away. The contact is brief. The child is not receptive to the father and shakes off his father's contact, immediately walking into the house. The child does appear to be either holding his arm or crossing his arms as he walks in. It is possible that his arm was hurt.
However, the evidence does not persuade me that the father used force or was forceful when he made contact with X. It is difficult to see why what is displayed in the video, would lead the mother to show it to the police.
Moments later, the children are returned outside, with the apparent encouragement or direction of the maternal grandmother. The children and the maternal grandmother then sit on the porch step (some metres from the kerb) and the father remains on the street, near his car. Again, I do not have evidence about what each of the adults present said on that occasion to each other, or to the children.
While the children did not spend time with the father on that occasion, it is not disputed that he had weekend and overnight time with the children, in accordance with the interim orders, on 23 and 24 November 2024. The mother says in her June affidavit at paragraph 82, that the "children have expressed to me that they are uncomfortable with any overnight stays at [Mr Morgan's] home". She states in that same paragraph, that on the weekend of 23 and 24 November 2024, the father "left them at his mother's home while he conducted business through the day and attended his friend's 40th birthday on the evening of the Saturday."
The mother offers no evidence of what she subsequently said to the children after the events of 17 November 2024, or after their time with the father on 23 and 24 November 2024. This was the last occasion on which the children spent time with their father. There is no suggestion on the mother's evidence that anything occurred on either of those occasions which would amount to a change in circumstance or allegation of risk for the children, to warrant revisiting the interim orders. I note that the basis of the mother's statement in her affidavit that the children were "uncomfortable" spending overnight time with the father is not explained and their asserted discomfort is not in itself sufficient to establish a reasonable excuse for contravening court orders.
In mid-2024, the father attended X's sports game, and the mother made a video recording of him. The mother said that she had a "safety plan" in place with the children and she stood beside X, holding his hand; she asserted that the father then took X's other hand.
Later, when home, she called the police about these events (which were alleged to constitute a breach of the ADVO in place at that time). The mother accepted that X may have heard her speaking to the police about these events. The police later attended the home, and X was interviewed and made a statement.
The father was charged with a breach of the interim ADVO. The father said he knew that the child would have been a witness in any contested criminal proceedings. The father said that such knowledge informed his decision to enter a plea, and the matter was later resolved on a without admissions basis.
It is unclear from the evidence before me at this time as to the nature of the restraints imposed upon the father at the time he attended the sports match, as the interim ADVO is not in evidence. If he did so, knowing that the terms of the ADVO in place precluded such attendance or contact with the children, then, such reflects poorly upon him. Compliance with orders for the protection and safety of others is not elective. Again, those events may be the subject of further exploration on a future occasion.
The mother relies upon the sports events as also informing the "background" to her current opposition to the father caring for the children and the basis for her apprehension of risk to the children. However, I note that these events pre-date the making of the interim orders in October 2024 and I expect that they were included by the mother in her evidence before the court on that occasion.

[28]

On Friday 28 February 2025, the father's solicitors wrote to the mother's solicitors, on his instructions, relating to a number of property issues, including the exchange of cars and the return of a car (which had been stolen and then recovered - "[Motor Vehicle 1]") to the mother. In that letter, his lawyers also proposed a process for his personal items to be collected by him from the former family home. The latter process was, it appears, addressed as part of Local Court orders permitting the father to obtain his personalty from the former family home. The father's solicitors set out a proposal in their letter for the exchange of the cars and the collection of the father's items, to occur at 10.00 am on Sunday 2 March 2025. If that date was not suitable, the father's solicitors invited the mother's suggestions as to alternate dates.
The mother's solicitors were instructed by her to reply to that letter and a letter of the same date was, it appears, sent to the father's solicitors. Both letters became Exhibit 9.
I accept the father's evidence that he did not see the letter from the mother's lawyers that day as it had been received by his solicitors after hours. He asserts that he was not aware of the contents of the letter until the following week, and I accept that evidence (the mother did not produce evidence to refute the late transmission of the letter). The mother asserted that, as she had not heard further from her solicitors after her letter had been sent, she decided to take steps to make the father's personal items available for collection by him, not from the garage of the home as he had proposed, but from the end of her driveway (consistent with her solicitor's letter). The mother said that she felt an obligation to put the father's items out for him that weekend and indeed by 10.00 am on Sunday 2 March 2025, as had been proposed in her solicitor's letter.
The sense of urgency which the mother claims she experienced, she says, in part, led her to prioritise the collection and removal of the father's items from her garage. These matters are addressed by the mother in paragraphs 63 to 70 of her April affidavit.
The mother is silent in that affidavit about the role played by the children in collecting and moving their father's belongings from the former family home to the kerbside. The father gave evidence of later viewing his CCTV footage (from a camera positioned at his place of residence across the street) and observing the children participating with the mother, her mother, and her brother, in moving his items from the garage of the former family home to the kerbside. He took still images from that footage and some of those images are in evidence as Exhibit 7.
The circumstances under which the children came to be involved in this project are of concern. The mother explained that the children were at home with her that Sunday morning and one of the children asked if he could help the mother move the items. She agreed and thereafter both of the children were involved, with the other members of the mother's family, in packing up their father's belongings and moving them out of the home. Photographs of the pile of items placed on the nature strip were taken by the father that day and became Exhibit 6.
The mother conceded in cross examination that she could have made arrangements to ensure the children were not at home when this process was occurring. By allowing the children to participate in the removal of their father's belongings, the mother went further than simply exposing them to that process. The process became one in which the mother, the children, her mother, and her brother, were all active participants in a joint exercise of removing the father's property from the former family home. The images in evidence make clear that the property is then left, in a disordered state (including plastic bags of different sizes, open cardboard and plastic boxes containing items and some bulkier items), on the nature strip.
Given the apparent vulnerabilities in the children's relationship with their father at that time (the causes of which are disputed), to involve them in the process of clearing out their father's property was unfortunate and the decision to allow such, does not reflect well upon the mother. The mother accepted that she had erred, when cross examined about her decision.
The father said that he first saw the items on the kerbside around 9.30 am that day and that he collected them later that day.
It was suggested by the mother that after the items were on the kerbside and when she and the children returned inside, a child observed the father to go onto the front lawn of his house and to place a black plastic tub onto the grass. The mother alleges that the father placed the lid of the tub, on which a typed page of paper was affixed and which faced her home, to provoke her. She says that she observed him to put water and detergent into the tub, which she found distressing, given she believed the tub contained her personal papers (as allegedly described on the typed page on the lid). These matters are set out in paragraphs 64 to 68 of her April affidavit.
The mother suggested in cross examination that she was in the lounge room of the former family home with the children and her mother, when one of the children observed the father putting the tub on the lawn and the child exclaimed about it, such that they all looked out the window. The mother added in cross examination that she became upset and that she began to cry, with the children observing her distress. She said that X was upset too (and began to cry) and exclaimed "isn't that your stuff?", thereafter making comments critical of the father.
The father said that he filled the tub with water and detergent to wash the items left by the kerb as they were "full of mud" and that he did not do so to provoke the mother.
Images of the tub taken from the CCTV footage from the mother's home that day were made Exhibit 8. Even on the enlarged version of the image, the words on the page affixed to the lid were blurred and unclear. The mother said that the page on the lid could be read by her (and by the children) from her vantage point in the loungeroom of the former family home.
The mother says in her April affidavit at paragraph 68 that the father's family arrived at his home later that day to assist him in moving his items from outside the former family home. She asserts that X, whilst crying, said "We can't leave our own home, they're all just outside". It is unclear and unexplained why X would be distressed upon seeing members of his father's family visiting his father. The mother does not disclose what she said to the child to reassure him.
The mother alleges that the father later that day followed her brother's car as he left the home. In her April affidavit at paragraph 69, she said "[Mr Morgan] immediately sped off in his [Motor Vehicle 2] after him at an alarming speed" and claims she was "panicked" as she saw a look on the father's face. She rang her brother as she was concerned for his safety. The father denied following the mother's brother. The mother did not call her brother to give evidence.
The mother contends that the children also saw their uncle being "chased" by their father. In her April affidavit at [81] she says:

[34]

The next day, Thursday, 6 March 2025 (the date of Count 1), the mother collects the children early from school. It is against the background of the events of 2 and 5 March 2025 that the mother says she was fearful of the father and that she had formed the view that it was necessary to remove the children from school prior to the father's attendance there that day.
The mother was cross examined about the events of 5 March 2025. The decision made by the mother - as asserted by her as being at the invitation of the man - to return the object to the father's home, was unfortunate. As was put to her in cross examination, she could have made other choices, including to dispose of the object.
Equally however, the father could have exercised better judgement in not returning the object to the mother by way of leaving it in Motor Vehicle 1. He said he did so because he believed the object was the property of the mother. His decision to do so is not constructive nor indicative of a mature co-parenting relationship with the mother. The mother's act in placing the object in a gift box and including it amongst the father's items for collection on Sunday 2 March 2025 was also a poor choice. I find that each of the parties has behaved with immaturity around possession of the object and each of their poor choices and limited insight have served to inflame conflict between them.
The mother said that she was too fearful to leave the scene when she was observing the father's engagement with the man. She said she was fearful and frozen.
Whilst the father may have behaved forcefully to the man (and the mother was proximate to that exchange), I do not find that the father behaved angrily or abusively to the mother on 5 March 2025.
The context of how these events may fit with other previous occasions on which the mother alleges the father has engaged in angry, abusive or violent conduct towards her will be explored more fully at a final hearing. I accept that the events of 5 March 2025 may have been more difficult for the mother to experience if she had previously experienced angry and unpredictable behaviour from the father, but I am not in a position to make findings about those broader alleged events at this time. Those historical allegations have been the subject of only limited evidence for the purpose of this hearing which has been more limited in scope.

[36]

In addition to the children assisting the mother to remove their father's belongings from the former family home, the mother was asked about other examples of the children's exposure to the conflict between the adults (which may, in part, inform or explain their apparent resistance to spending time with the father). In cross examination, the mother conceded that the children were aware that she had CCTV at the home, as she had shared that information with them. The mother admitted that on 2 March 2025 (when the father's property was placed outside the home), she placed an additional camera onto a bin outside the home (to capture footage of the items on the kerbside and anyone approaching to collect them). She accepted that the children knew about this as one of them went out of the house to change the direction of the camera. She asserted that she had not directed the child to do so. In those circumstances, it is not clear why the child went outside to adjust the location of the camera.
The mother was asked about the circumstances in which the children came to view CCTV footage of the father entering the home with a woman (which issue is explored in the Child Impact Report including at paragraphs 63 and 64, being the mother's account of this to Mr E and his observations as to contradictory reports made to him by the children). The mother said that she was not in the home at the time and was later checking the footage and happened to see the footage of the father and a woman. She denied sharing the video footage with the children multiple times (despite this being, in summary, what Mr E says the children told him).
The mother became emotional when giving her evidence about this and admitted that she rewound the footage and watched it again with the children present. She said that she was emotional at that time and the children were aware of her distress. She asserted that she regretted her actions and that she knew that her actions were inappropriate.
In response to questions from me, the mother said that she had reassured the children at that time, that she told them she was upset, that she needed some time, and that she would be okay. She said she was upset for several minutes in the presence of the children.
The mother agreed with the father's counsel that the children's exposure to her distress would likely mean that the children would more closely align with her and strengthen their desire to act protectively of her.
The mother denied talking with the children regularly about the arrangements for their care/time with the father but did say that she "answered their questions". The comments X made to Mr E (at [92] and [93] of the Child Impact Report) were put to the mother.
She agreed that her conduct was entirely inappropriate, and she again expressed her regret for doing so. She agreed that such would be highly likely to cause the children to be aligned with her narrative against the father. In that context, the mother agreed that the children's resistance to time with their father was not entirely attributable to conduct by him.
Mr E said that X told him that the reason he stopped spending time with his father in May 2024 was because the police had made an order that the father was not allowed to talk to the mother, or to talk to the children (Child Impact Report at [94]). Mr E notes that X expressed further knowledge of the involvement of the police, because of his direct discussions with them, overhearing them speaking with his mother, and because of his mother telling him about the discussions she has had with the police (Child Impact Report at [95]).
In paragraph 102 of the Child Impact Report, Mr E sets out comments made to him by Y, including that his mother had said to him that their father was not allowed to see the children, that there were "specific reasons" why he was not allowed to see the father, and that she had spoken to him about her intention to call the police if the father tried to take the children from soccer.
Mr E reports at paragraph 103 that Y said that his mother had reminded the children about the things they needed to say to the report writer (including reminding the children that their father did not have dinners with them and ways the father spent time with other people rather than the children).
The mother was not cross examined about all of these matters and I will not, at this stage, make findings as to whether the reports of the children to Mr E accurately reflect what has occurred, given Mr E has not been cross examined. However, the tenor of Mr E's account of what the children told him is that the mother has had discussions with the children about issues relating to their father, which go beyond "just answering their questions".
Mr E opines that the mother has "deliberately and systematically provided information to the children which she would have known would cause the children to think poorly of their father and damage the children's relationship with the father". He describes this as "a serious form of child abuse" (Child Impact Report at [114]) and makes certain recommendations as to steps the mother should take to learn about the risks to children when exposed to parental conflict.
This is a serious conclusion (as to deliberate conduct on the part of the mother) which I expect will be the subject of further exploration at a final hearing. More generally, the comments made to Mr E by the children have caused Mr E to express serious concerns about certain risks for these children as a consequence of conduct by the mother.
Mr E expressed concern that if the children continue to spend no, or little, time with the father, and given their exposure to the adult conflict, their current views will become entrenched and their long-term relationship with the father will be damaged further (Child Impact Report at [124]). He makes certain recommendations as to the resumption of time and how to best support that process for the children.
Mr E's report was available to the parties (and to the court) prior to the contested interim hearing and the making of the interim orders.

[39]

The basis for the assertion as to escalation of conduct by the father as the foundation for the mother's asserted fear is not made clear in her evidence.
Further in the June affidavit, the mother says:
1. I was terrified that [Mr Morgan] was going to harm me or the Children as retaliation either against me, or if the Children told him that they did not want to spend time with them.
2. I did not discuss the incident that occurred on Wednesday 5 March 2025 with the Children. I did not discuss the incident in the Children's presence or hearing.
On the mother 's evidence, the children had been refusing to spend time with the father since the weekend of 23 and 24 November 2024.
The mother's evidence was to the effect that she knows that the father attends the school to collect the children in accordance with the interim orders. She said that she knows that the children then tell their father that they do not want to go with him and that upon being contacted by the school, she attends the school to collect them. There is no complaint of angry or retaliatory conduct by the father directed to the children in these instances.
However, the mother contends that the events of 5 March 2025 were such that she considered it necessary to remove the children from the school early on 6 March 2025, to ensure that the children would not spend time with the father.
The evidence does not permit me to find that the mother had a reasonable excuse for breaching the interim orders. I do not accept that the evidence of the events of 2 and 5 March 2025 provides a proper basis for the mother to assert a reasonably held belief that the safety of the children would be imperilled if they were to spend time with the father in accordance with the interim orders. Similarly, the evidence does not permit me to find that the mother had a reasonable basis to conclude that her safety was at risk if she complied with the order. The basis of the mother's asserted fears as to the risk of retaliation by the father is not established by the evidence available to the court. A mere assertion to that effect is insufficient.
The mother asserts generally that she has a reasonable excuse for contravening the interim orders because the children do not want to spend time with the father and that she is effectively unable to persuade them to spend time with the father.
It was put by counsel for the mother that given the children were refusing to leave the school with the father in the lead up to the events the subject of the Contravention Application, her decision to remove them earlier from school on those days did not effectively constitute a breach, as past events made clear that the children were not likely to go in any event, and thus, those circumstances created a reasonable excuse. With respect to counsel, I do not accept that submission. The mother cannot rely upon her past failure to discharge her obligations under the interim orders as a justification for contravening the orders on later occasions, when given effect by different means. The orders remained in effect and the wife continued to be bound by them.
There is no evidence before me that the mother has done anything in a real sense to direct and use her parental authority to require the children to spend time with the father.
In exercising obligations under child-related orders, the authorities make clear that positive steps are required to be made by the parents to ensure that the orders are implemented. The interim orders include Notation G, which directs the parties to the particulars of the obligations created by the orders and the consequences that may follow in the event a person contravenes the orders. The Annexure attached to the interim orders very clearly explains the obligations created by parenting orders and includes as follows:

[42]

a) The 'live with' parent must actively encourage the child to attend time with the other parent as ordered (see Webber and Budd (No 2) [2011] FamCA 539). > > b) 'The courts have been careful to consider whether in reality, not just on the face of things, the [live with] person has taken reasonable steps to deliver the child for [spend time]': see O'Brien & O'Brien [1992] FamCA 52; (1992) 16 Fam LR 723; (1993) FLC 92-396 at [13]. In Ackersley & Rialto [2009] FamCA 817, at para [102], Cronin, J referred to the 'Parenting orders - obligations, consequences and who can help' statement, which is annexed to every parenting order ... > > c) 'It is not open to the custodial parent to do no more than bring the child to the front entrance and invite [the child] to walk of [their] own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep. See: Stevenson & Hughes [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC 92-363 at [25]. > > d) 'Similarly, a mere request that the child telephone, or come to the telephone is insufficient', see: TVT & TLM [2006] FMCAfam 20 at [33]. > > e) Once an order for the child to spend time has been made, it is 'no longer a case of saying to the child: you go if you want to, if you wish to go you go, or you make up your own mind': see O'Brien & O'Brien [1992] FamCA 52; (1993) FLC 92-396 at [11]. > > f) A 'live with' parent ought to make 'the child understand that it was the [live with parent's] attitude that the child had to [spend time]': see O'Brien & O'Brien [1992] FamCA 52; (1993) FLC 92-396 at [8]. > > g) The residence parent is expected to bring to bear all the authority that they have over a child, just as they would to ensure the child attends school: See WJP & TP [2002] FMCAfam 315 (Unrep.) at [12] and [14]. > > h) It must be noted that 'an invitation can be made designed to persuade the child that this is something which the mother encourages or approves of, or it can be stated in a tone or in a manner which of its own suggests that this is your obligation under the order but mummy really does not mind if you say no.' Such an invitation is insufficient: see Stevenson v Hughes [1993] FamCA 14; (1993) FLC 92-363 ([1993] FamCA unrep527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC 92-363 at [26].

[46]

(a) The mother has empowered the children to indicate if they want to spend time with the father. To the extent there is evidence before me about these conversations, the mother speaks to the children about what they want to do and does not provide evidence as to the steps she has taken to compel the children (using her parental authority) to spend time with their father. Indeed, she had effectively passed to the children the choice and power to decide whether they were to spend time with the father (on the occasions that he arrived at the school and they declined to leave with him).

(b) In doing so, she is placing the children in the invidious position of being the ones required, on that basis, to tell their father that they do not wish to go with him. She has allowed this scenario to play out on each occasion in February 2025, when the father has gone to the school to collect the children in accordance with the interim orders.

(c) The fact that a child may say words to the effect that he or she does not want to spend time with a parent, in accordance with orders, is not sufficient to remove responsibility from the relevant parent to compel the child to spend time with the other parent as ordered.

(d) The mother provides scant evidence of actions taken by her or things she said to the children, to make clear to them, that she required them to spend time with the father.

(e) With respect to the events alleged in Count 1, the mother's early attendance at the school took her intervention further and she acted deliberately to ensure the children would not spend time with the father, in accordance with the interim orders.

(f) I find that the mother has failed to take reasonable steps to ensure the children attend the ordered time with their father.

(g) In addition, I find that her actions in involving the children in aspects of her dispute with the father, including on 2 March 2025, suggest that the children are exposed to her view about the deficiencies in their father's conduct and in other instances, that she and they need to be protected from him. The evidence makes clear that the children are aware of the mother's views of the father and are aware of the involvement of the police in their family.

(h) The mother's decision to involve the children in packing up their father's items and helping to carry them out to the nature strip is an example of the mother making a poor choice which directly engages the children in the conflict. She admitted that the children knew she had CCTV at the home, that she had placed a secondary camera on a plastic bin to record the items on the kerbside, and that the children knew about this additional camera.

(i) I also have regard to the matters observed by Mr E as to the extent and nature of things discussed between the mother and the children, and the children's exposure to the mother's distress, which is linked to conduct by the father. I note that Mr E has not been cross examined, and I accept that there may be some qualification or change to his account of what the children said to him, his observations, and his opinions, more generally, once tested. However, I am entitled to take the Child Impact Report into account at this stage (indeed, I am required to take into account credible evidence relating to possible risks of harm to which the children may be exposed, and these are certainly matters of concern identified by Mr E) (see Fowler & Northwood [2022] FedCFamC1A 173 at [24]).

(j) The mother's actions in exposing the children to her distress arising from the CCTV footage (and viewing that footage with the children) are serious and regrettable, as was conceded by the mother during cross examination.

[47]

These considerations and Mr E's cautions about the risks presently facing these young children, make clear that priority should be given to this matter being progressed to a final hearing as soon as possible.
Some of the conduct which the mother says informs her asserted fear of the father predates the making of the interim orders and would have been the subject of evidence before the court prior to the interim orders being made.
I find that whilst the father's conduct on 5 March 2025 was regrettable in some instances, he did not engage directly with the mother and did not speak with her. The mother's evidence about how she felt that day does not in itself lead me to conclude that she had a reasonable basis to believe that she needed to prevent the children spending time with the father, in order to protect their safety.
The children were not present when the events of 5 March 2025 occurred, and the mother says that she has not told the children about those events (or her perception of those events).
The father did not speak to the mother on that occasion and there is nothing in what occurred between the adults on 5 March 2025 to create a reasonable basis to suggest that the father would act in a way that would imperil the safety of the children, or the mother, on Thursday 6 March 2025 (or subsequently).
I also take into account that the mother did not make an application to this Court to seek to suspend or change the interim orders, until she filed an Application in a Proceeding on 6 May 2025. This is despite her own assertion that the children were not agreeing to spend time with the father and in circumstances where the children had last spent time with the father, under the interim orders, in late November 2024. That delay does not support the contentions she now makes about the risk to the safety of the children which she perceived arose from the events of 5 March 2025. This is a factor that I am to take into consideration (see Peluso & Karle [2023] FedCFamC1F 87 at [96]).
Where a party does not have a reasonable excuse, the orders of this Court are to be complied with. It is not open to the mother to elect when she wants to comply, nor is it open to her to pass responsibility for compliance to children who are 11 and eight years old.
I find that Count 1 is proved, and I find that the mother has failed to prove, to the requisite standard, a reasonable excuse for her contravention of that order.

Burke & Morgan [2025] FedCFamC1F 484 (23 July 2025)

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Judgment (52 paragraphs)

Legislation Cited (2)

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