Burke & Morgan (No 2) [2025] FedCFamC1F 707 (8 October 2025)

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 the pseudonym Burke & Morgan has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. Following a two-day contravention hearing, I made findings that the mother had contravened interim parenting orders on three occasions, without a reasonable excuse. My reasons for judgment, Burke & Morgan [2025] FedCFamC1F 484 ("Burke & Morgan"), contain the relevant background of the matter and the circumstances under which the mother had contravened the interim parenting orders (made on 1 October 2024 following a contested hearing). I will not repeat those matters here.
2. At the conclusion of the contravention hearing, counsel addressed me as to what orders I ought to make and any appropriate sanction, in the event I was to find that the contraventions were proven, without a reasonable excuse (Burke & Morgan at [134]). I resolved however (Burke & Morgan at [135]):

... that it would be appropriate and procedurally fair, to provide the parties with a further opportunity to file any additional evidence that they may wish to rely upon and for them to have an opportunity to articulate further submissions as to sanction and what orders ought to be made in light of these reasons. There may be evidence which the mother is concerned to place before the court to support submissions as to penalty, and in circumstances where I have found that the contraventions have occurred without a reasonable excuse, it is necessary and proper that the mother be afforded that opportunity (Galvis & Galvis [2024] FedCFamC1A 123).

1. The matter was accordingly adjourned for further hearing in respect of the outstanding issues of sanction and costs. The matter came before me on 29 September 2025 for that purpose, and after hearing submissions on behalf of the parties, including the Independent Children's Lawyer ("the ICL") (who, given the time of their appointment, did not participate in the substantive contravention hearing), I reserved my decision.
2. In support of the issues to be determined by me in respect of sanction and costs, the mother filed an affidavit on 20 August 2025 ("the mother's affidavit"), and the father, on 11 September 2025 ("the father's affidavit"). Additionally, written submissions were filed on behalf of the mother and the father (the father's written submissions filed 26 September 2025 becoming "Exhibit 4", and the mother's written submissions filed 13 August 2025, "Exhibit 6").
3. In addition to the above, I have also read and considered the father's Financial Statement filed 8 August 2024 ("Exhibit 1"), a joint balance sheet filed 19 September 2024 ("Exhibit 2"), the mother's Financial Statement filed 24 September 2024 ("Exhibit 3"), and the father's Costs Notice filed 29 September 2025 ("Exhibit 5").

1. Subdivision B of Division 13A of the Family Law Act 1975 (Cth) ("the Act") provides the relevant legal framework for orders relating to contraventions of child-related orders.
2. Section 70NBA(1) of the Act explains that Subdivision B of Division 13A sets out the orders that the court can make if:

(a) an issue arises in the proceedings about whether a person (the respondent) has contravened a child‑related order; and

(b) a party to the proceedings makes an application for an order under this Subdivision in relation to the issue.

1. The principal objects of Division 13A (as outlined in s 70NAB of the Act) are to meet the best interests of the children to whom child-related orders relate by:

(a) supporting compliance with child‑related orders; and

(b) resolving difficulties associated with child‑related orders that are parenting orders which have contributed to non‑compliance with such orders (including by varying or making further orders); and

(c) deterring non‑compliance with child‑related orders; and

(d) upholding the authority of the court by enforcing compliance with child‑related orders where the court considers this necessary and appropriate; and

(e) providing for sanctions for a person who contravenes a child‑related order without reasonable excuse.

1. The evidence of each of the parties makes clear that since the outcome of the contravention hearing, the parties have worked co-operatively to facilitate the resumption of the children's time with the father and the participation of the family in family therapy.
2. The father's position as to sanction was made clear in his affidavit as follows:
   1. I am content for the Court to impose whatever sanction it considers most fitting in the circumstances ...

...

1. I respectfully leave it to the Court to determine what sanction, if any, is appropriate in the circumstances. I am committed to continuing to work towards rebuilding my relationship with [X and Y] [the children] through the family therapy process and the time we spend together and, building upon the steps [Ms Burke] [the mother] has taken since the June 2025 hearing for which I am thankful, have a sense of optimism that [Ms Burke] [the mother] and I will be able to co-parent them into the fine young boys and men they deserve to be.

1. That position was echoed in Exhibit 4 and by his counsel in the submissions made on his behalf on 29 September 2025.
2. While the father in his written evidence, identified some remaining challenges and frustrations regarding the resumption of his time with the children since the contravention hearing, he identified risks to the co-parenting relationship if he was to seek to "punish" the mother. It was submitted (Exhibit 4):
   1. ... He also knows that asking the Court to punish the Mother will not assist the co-parenting relationship that he seeks.
   2. His position is that withholding from making any such request of the Court is a constructive step in building on the co-parenting relationship and minimising any conflict between the parties that the Children may continue to feel exposed to.
3. The father's position however, in declining to seek a particular sanction, is not the same as proposing that there should be no sanction. The father instead proposes to defer entirely to the discretion to be exercised by the court.
4. I note that the father's current position as to sanction is markedly different to that which he had proposed when the matter was before the court on 2 and 3 June 2025. At that time, the father had sought that the mother enter into a good behaviour bond, without security, for 12 months. At that time, the father also sought that the parties and the children embark upon family therapy.
5. As for the mother's position, the mother's extensive written submissions (Exhibit 6) conclude as follows:

9.1 Given the pending Final Hearing, the increased and constructive communication between the parents, and the Mother's improved insight and professional support network, there is little risk of any further contraventions.

9.2. In these circumstances, the Mother respectfully submits that the Court should exercise its discretion to find that no sanction is necessary, as the measures she has already implemented will continue to provide the most effective protections for the children's wellbeing and care.

(Emphasis added)

1. The mother accepts that the court holds a broad discretion when determining an appropriate sanction, if any (Exhibit 6 at [2.2]). The mother seeks that no sanction be applied. She deposes in her written evidence to steps taken by her to address matters identified as being of concern in Burke & Morgan as to her understanding of, and attitude to, her responsibilities under the existing orders. Those matters are identified more fully below.
2. The ICL submitted that in the shadow of the contravention orders made, the parties were working constructively with respect to the children's time with the father. The ICL submitted that the co-parenting relationship could be subject to further, unwelcome strain, if a sanction was imposed upon the mother for her breach of orders.

1. The mother deposes to a change of attitude since the contravention hearing, such that (the mother's affidavit at [9]):

Even when the Children are reluctant to spend time with [Mr Morgan] [the father], I encourage them to spend time with their father, remind them that their father loves them and that they will have a great time.

1. It is agreed between the parties that the father's time with the children has resumed and now is occurring, largely in accordance with the interim parenting orders. At the hearing, I invited the parties to indicate if any amendment to the interim parenting orders was required. I provided the parties with time to explore certain matters, directed to the resolution of any outstanding issues, by consent. In due course, I was advised that agreement had been reached between the parties as to particular school holiday time between the father and the children. Orders were made by consent on 29 September 2025 about those arrangements.
2. I have made clear to the parties during the conduct of the contravention hearing that the court requires orders to be complied with (though, of course, that should already be understood by the parties). The mother was, and remains, aware of her obligations under the interim orders.
3. At the conclusion of the contravention hearing, counsel for the father submitted that I could make orders with respect to the commencement of family therapy. Counsel for the mother indicated that the mother supported the commencement of family therapy but could not indicate, at that time, whether the father's proposed wording for such an order may be made by consent (Burke & Morgan at [136]). I deferred consideration of whether an order as to family therapy should be made where the circumstances between the parties may have changed since the contravention hearing (Burke & Morgan at [137]).
4. While there remain no orders to this effect, the family has since commenced family therapy, and it appears from the evidence and submissions of both parties, that they have benefited from that engagement. The father recognises the family therapy sessions as being "helpful in addressing the children's difficulties with the transition" between the parties' homes (the father's affidavit at [25]). However, the father has some reservations as to the mother's participation in family therapy (the father's affidavit at [26]).
5. The mother deposes to an agreement between the parties that the ICL will liaise with the family therapist to obtain the family therapist's recommendations moving forward (the mother's affidavit at [12]). It is the father's understanding that the mother had booked a session with the family therapist for herself and the children on 19 September 2025 (the father's affidavit at [26]).
6. I recognise that family therapy has, and will likely continue to have, a positive impact on the children and the parties. It is commendable that the parties have managed that process without the necessity of an order of the court. The specifics of the parties' agreement in relation to family therapy remain unclear and I do not intend to jeopardise the parties' progress by making an order in relation to family therapy that may be inconsistent with their agreement and the current arrangements.
7. I further acknowledge that the mother has taken proactive steps to address her behaviours the subject of criticism in Burke & Morgan. These include:

(a) Pastoral counselling and support (the mother's affidavit at [15]);

(b) Engaging a treating psychologist at G Health Centre (the mother's affidavit at [17]); and

(c) The completion of a parenting course titled 'Up to Parents' (the mother's affidavit at [21]).

1. Both parties identify the benefits to the children of the parties having a positive co-parenting relationship and each parent identifies that relationship as improving (the mother's affidavit at [13] and [14], and the father's affidavit at [31] and [35]).
2. This is the first occasion on which the mother has been found to have breached orders without reasonable excuse. The gravity of that determination, and the findings made in Burke & Morgan, appears to have had some impact upon the mother and may have assisted her in engaging in further reflection about her responsibilities and obligations under the orders.
3. I have regard to the objects of proceedings under Division 13A of the Act, as set out in s 70NAB of the Act (and as can be found above).
4. I have regard to the possible impact upon the children of making an order as to sanction. In doing so, I have considered the range of sanctions available to me to address the mother's non-compliance with the interim orders. At any stage in the proceedings, an order can be made for the mother to attend a post-separation parenting program or other program. I have regard to the steps taken by the mother, as set out in her affidavit, in response to the findings made as to her actions in breaching the orders, without reasonable excuse.
5. In circumstances where the father does not wish to jeopardise the improvements that have followed the contravention hearing, both in terms of his relationship with the children, and with the mother, I determine that imposing no sanction at this time best upholds the principal objects set out at paragraph 8 above. I am influenced in this decision by the submissions made on behalf of the father that this course is a "constructive step in building on the co-parenting relationship and minimising any conflict between the parties that the Children may continue to feel exposed to" (Exhibit 4 at [7]).
6. I acknowledge the father's submission that the imposition of a sanction may indirectly impact the children. The children should be shielded by their parents from knowledge of these proceedings and any orders made. However, I recognise that there is still some risk that they would become aware of the orders made and may then conclude that their father is responsible for their mother being "punished". In addition, I accept that the father seeks to be protective of the improving co-parenting relationship and seeks to avoid an outcome which might lead to a deterioration of the relationship between the parties.
7. That said, the mother's contraventions (without a reasonable excuse) are not to be viewed lightly. I have considered the mother's submissions and note that she is remorseful of her actions and expresses some insight as to what had occurred. I have previously found that the mother had done nothing in a real sense to direct and use her parental authority to require the children to spend time with the father (Burke & Morgan at [119]). Nonetheless, the evidence leads me to accept that, at this time, the mother has reflected on her past poor behaviour and my previous findings as to some of her conduct (in Burke & Morgan). Such reflection appears to have resulted in a change of attitude (as at paragraph 18 above) and pro-active steps taken by her to assist her in facilitating compliance with the orders and in supporting the children's best interests (as at paragraph 25 above).
8. The interim parenting orders (of 1 October 2024 and the additions of 29 September 2025) continue to govern the arrangements for the care of the children, and further contravention proceedings would be contrary to the children's best interests. I am, however, satisfied that the steps taken by the mother following the contravention hearing have gone some way in mitigating the risk of further contraventions (as was submitted at [9.1] of Exhibit 6).

1. In light of the preceding, I am satisfied that the relevant principal objects, as set out in s 70NAB, are satisfied by no further order being made in respect of the father's Contravention Application filed on 31 March 2025 ("Contravention Application"), save for costs (as determined below).

1. The father filed his Contravention Application on 31 March 2025. He initially sought orders for the mother to pay his costs of, and incidental to, that filing on an indemnity basis. At the hearing on 29 September 2025, the father sought that the mother pays his costs, as agreed, and failing agreement, as assessed.
2. In his written submissions, the father said that he "seeks to be compensated for the money he spent in bringing the Application and being successful" (Exhibit 4 at [10]). The father's affidavit sets out his position that:
   1. Accordingly, I am seeking an order for costs of and incidental to the Contravention Application. However, so as to assist in hopefully facilitating ongoing collaboration and co-operation with [Ms Burke] [the mother], I propose that payment of the costs be deferred until 60 days following the conclusion of the final hearing in April 2026, or upon earlier resolution of the property settlement between us, whichever occurs first.
3. Senior counsel for the mother submitted that any such determination could, and should, be deferred to the final hearing of the matter (set down to commence on 13 April 2026). It was urged upon me that in doing so, I would have a more complete picture as to the parties' financial circumstances and any other circumstances which may be relevant in determining this issue.
4. I decline to adopt that approach in circumstances where:

(a) This is a discrete issue relating only to the contravention proceedings (which will conclude after I deliver these reasons for judgment);

(b) The father has sought that his costs be paid as agreed, or as assessed, which is a modification of his previous orders sought as to costs;

(c) I accept, as was submitted on behalf of the father, that a costs application deferred until the final hearing, may be "lost" in the midst of the other issues to be determined at that time; and

(d) The parties have been on notice from at least 23 July 2025 (when I made orders to that effect) that costs remained an outstanding issue and each party has had an opportunity to file evidence as to the issue of costs.

1. The Act makes clear that unless the court is of the opinion that there are circumstances that justify making a costs order, each party is to bear their own costs. In considering what costs order, if any, should be made, s 114UB(3) requires me to have regard to the following:

(a) the financial circumstances of each party to the proceedings;

(b) whether any party to the proceedings is receiving assistance by way of legal aid in respect of the proceedings and, if so, the terms of the grant of the assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting paragraphs (a) and (b), the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters, and in relation to their duty of disclosure under subsection 71B(1), 90RI(1) or 90YJA(1);

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f) whether a party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;

(g) such other matters as the court considers relevant.

1. I have had regard to those considerations as follows.

1. The mother is employed but deposes to recently reducing her working days and to currently earning $1,742.76 per fortnight (the mother's affidavit at [22] - [27]).
2. The mother complains of not receiving child support payments from the father (the mother's affidavit at [28]). However, as was advanced from the bar table on behalf of the father (and which appears not to be controversial), no application for an administrative assessment of child support has been made by either parent. The evidence makes clear that the father meets the repayments associated with a credit card which is utilised by the mother for her own (and the children's) needs (though the father deposes to reducing the credit limit available to the mother on that facility).
3. The mother did not file an updated Financial Statement despite directions that made clear that the father's application for costs remained on foot. I have had regard to Exhibit 3 and while I recognise that it is dated, and with parts that are incomplete, it makes clear that on the mother's own account, the mother (and the parties more generally) holds substantial property interests. At that time, being September 2024, the mother deposed to operating a bank account with a balance of $392,480.06.
4. I have had regard to Exhibit 2. While the figures in that joint balance sheet are estimates only, made some time ago (filed on 19 September 2025), the mother estimates the net matrimonial pool to have a value of almost $15,000,000. The father's part of that document asserts the value of the parties' property at almost $17,250,000.
5. It is not argued that the mother could not meet a costs order, if made.
6. I further note that the father proposes that the mother defer the payment of any such costs order, for some time, or until the parties have resolved the property settlement issues between them (the father's affidavit at [35]).

1. Neither party is receiving assistance by way of a grant of legal aid.

1. Counsel for the father submitted that the way in which the mother ran her case at the contravention hearing, described as "most unusual", should influence consideration of making the costs order. While the father was cross examined for a day, I am not persuaded that such in itself weighs in favour of circumstances justifying the making of a costs order.
2. The mother conceded that she had breached the interim orders, however, she maintained that she had a reasonable excuse. I did not find that she did so. I address that aspect of the mother's conduct below.

The necessity of the proceedings - s 114UB(3)(d)

1. The proceedings have occurred in circumstances where the mother was not complying with the interim orders, which lead the father to file his Contravention Application. Prior to the contravention hearing, the last occasion on which the father spent time with the children was on 24 November 2024 (Burke & Morgan at [16]). Following the contravention hearing, I found that on each of the occasions the subject of the Contravention Application (Burke & Morgan at [133]):

... the mother does not take steps to arrange for the children to spend any time with the father. She acts to thwart the commencement of the period of time provided under the orders, on each occasion, and that prevention or disruption continues for the entire period of ordered time.

1. It is common between the parties that the father's time with the children only resumed after the contravention hearing. I am satisfied that the proceedings were necessary in this context.

Whether a party has been wholly unsuccessful - s 114UB(3)(e)

1. It was accepted by senior counsel for the mother that the mother was wholly unsuccessful in her "defence", in asserting that she had a reasonable excuse for contravening the interim parenting orders on the three occasions the subject of the Contravention Application.
2. The orders of 23 July 2025 make that clear, and certain paragraphs ([119], [123], [130], and [133]) of Burke & Morgan were brought to the attention of the court by counsel for the father.
3. The mother was wholly unsuccessful in her attempt to establish that she had a reasonable excuse for contravening the interim parenting orders. That determination also weighs in favour of a costs order being made.

1. The father contends in his affidavit at [33] and [34] that, prior to filing the Contravention Application, the father's lawyers wrote to the mother's lawyers about certain matters and which I was advised in submissions, were offers to resolve the issues between the parties. No letters were in evidence, and this subsection plays no part in my determination.

1. I have determined that it is appropriate to decide whether the costs order as sought by the father should be made and have declined, as sought by senior counsel for the mother, to defer this determination to consideration at the final hearing.

1. In light of the preceding, I am satisfied that there are circumstances that justify making a costs order against the mother, in circumstances where the mother was wholly unsuccessful in asserting that she had a reasonable excuse for her contraventions of the interim orders. The proceedings were necessitated by the mother's failure to comply with court orders. I am satisfied that those circumstances justify departing from the usual course, being that each party bear their own costs.
2. Counsel for the father indicated the obvious benefits to the parties of being able to resolve this issue of costs, by way of agreement. I will make the orders as proposed by the father. However, should no agreement be reached, I will make an order for the mother to pay the father's costs of, and incidental to, the father's filing of his Contravention Application, as assessed.
3. In accordance with the father's affidavit at [35], the payment of the agreed or assessed amount is to be deferred until 60 days following the making of final property orders, whether by consent or following the delivery of judgment after the final hearing. I will make an order to this effect.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Simpson.