Burke v LFOT Pty Ltd

(a) the Application in a Proceeding filed on 30 May 2025 is dismissed; and

(b) the application for the orders in Exhibit M1 is dismissed.

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

1. On 25 February 2025, final orders under Pt VII of the Family Law Act 1975 (Cth) ("the Act") were made between the parties in respect of their three children. The orders were amended on 26 February 2025 to correct a typographical error, which amendment is not presently material.
2. Relevantly for present purposes, the orders provided for the youngest child to continue living with the mother, but only upon her meeting certain conditions. The conditions precedent to the youngest child's residence with the mother were set out in Order 6 in these terms:

6. The mother:

(a) shall, by [April 2025], establish her residence at an address within a radius of 50 kilometres from the police station at [Suburb D], NSW;

(b) is thereafter restrained from establishing her residence outside that radius for the remainder of [the youngest child's] minority; and

(c) shall forthwith furnish to the father a copy of any residential lease into which she enters at any time after the date of these orders for the remainder of [the youngest child's] minority.

1. In the event of the mother's default in compliance with those conditions, it was ordered that the youngest child instead live with the father and her two older siblings (Order 8).
2. The prospect of the mother's default in compliance with the conditions and the consequential remedy was addressed this way in the reasons for judgment:
   1. The mother was squarely confronted in cross-examination with the dilemma posed by her apparent resistance to the youngest child spending more time with the father. She affirmed she understood the problem and was willing to move to [City F] to overcome it - preferably so she could maintain the youngest child's residence but, even if all three children were to instead live with the father, so she could be closer to them. Her preference was to remain living in [City E] with the two youngest children, but she was nevertheless willing to move to [City F]. She said in relation to the move "I will make it happen".

...

1. Despite her expressed willingness to move to [City F], the mother still initially pressed for an order enabling her to live in [City E] during final submissions. When the inconsistency between her evidence and her application was identified, the mother amended her application to one which would enable her and the two youngest children to live within 150 kilometres of [City F], which amended proposal did not cure the inconsistency. Understandably, the father and the ICL doubt the genuineness of the mother's stated willingness and intention to relocate to [City F] in the face of her prevarication. Such doubts underpinned the maintenance of their joint application for the youngest child to live with the father.

2. Ultimately, I am unwilling to reject the mother's sworn evidence as being untruthful, but she will be taken at her word. The youngest child will continue living with her, but only if she adheres to her concession by moving to and staying in the [City F] environs. Parents enjoy the freedom to live where they like, but only to the extent compatible with their legal obligations to the children for whom they care (AMS v AIF (1999) 199 CLR 160 at 223-224 and 231-232; Sampson v Hartnett (No 10) [2007] FamCA 1365; (2007) FLC 93-350). Here, the mother is obliged to ensure the youngest child lives relatively near the father and her siblings, so she sees them regularly. It is uncommon for the Court to make a mandatory injunction compelling a party to move to and live in a region he or she would not voluntarily choose, but such an onerous order is empowered and justified when demanded by the best interests of the child who lives with that party (Franklyn & Franklyn [2019] FamCAFC 256 at [18] and [25]-[28]). Here, such an injunction is uncontroversial as it enjoys the mother's consent, given in cross-examination.

...

1. If the mother does not move to and stay within the [City F] environs, the best interests of the youngest child demand that she instead live with the father and her siblings, so she may experience close and loving relationships with all members of the family, not only with the mother. The youngest child's change of residence may then be enforced by the issue of a recovery order pursuant to Pt VII, Div 8, Sub-div C of the Act, upon the father's proof of the mother's failure to either move to or remain in the area.

2. If the orders must be executed in that way sooner rather than later, the youngest child's time with the father might not then graduate, as would be ideal, but that delicacy designed for her short-term transition can be forgone for her long-term benefit. The youngest child is still comfortable with the father and her siblings. When the youngest child then spends time with the mother, they will be confined to a radius of 50 kilometres from the father's home, other than during school holidays when they can travel further afield.

(Footnotes omitted)

1. The mother was required by the orders to move her residence to within 50 kilometres of the Suburb D police station by April 2025. The father alleges she failed to do so and has still not done so.
2. On 30 May 2025, the father filed an Application in a Proceeding seeking a recovery order in respect of the youngest child, so that she henceforth lives with him, as was envisaged might be necessary. The mother tried but failed to file a Response to the Application in a Proceeding on 11 June 2025, seeking dismissal of the father's application, which was marked as Exhibit M1.
3. However, on 30 May 2025, the mother filed an Amended Response to an Initiating Application, in which she sought relief under both Pt VII and Pt VIIIAB of the Act, which document must be addressed first.

The mother's application for financial relief under Pt VIIIAB of the Act

1. In her Amended Response filed on 30 May 2025, the mother seeks a blend of both interim and final financial relief under Pt VIIIAB of the Act (proposed Orders 40-55).
2. Her application for orders in those terms is adjourned for consideration at the trial of the financial proceedings, still pending between the parties, which trial is listed to start on 18 August 2025.

The mother's fresh application for final parenting relief under Pt VII of the Act

1. The cause of action between the parties in respect of their children under Pt VII of the Act was finalised by the orders pronounced on 25 February 2025.
2. When the parties were last before the Court on 19 May 2025 for procedural directions in respect of the outstanding financial cause of action under Pt VIIIAB of the Act, they consented to the dismissal of the mother's most recent application for more parenting orders under Pt VII of the Act. This order was made with their consent:
   1. Orders 1 to 42 inclusive sought within the Amended Response filed on 4 March 2025 are dismissed.
3. The dismissal order was made because the mother's lawyer conceded there was no change of circumstances between the time when final parenting orders were pronounced on 25 February 2025 and when the mother filed her Amended Response shortly afterwards on 4 March 2025. Nor was there any change of circumstances in the period between 4 March 2025 and the procedural hearing on 19 May 2025.
4. When the mother filed her most recent Response on 30 May 2025, seeking both interim and final relief, it was unaccompanied by any supporting affidavit to explain any change of circumstances since the last Court event on 19 May 2025, two weeks before. Nor did the mother make any oral submission at this hearing to articulate any change in circumstances to warrant re-opening the parenting cause of action. Her stated position was simply her disagreement with the orders made on 25 February 2025, which orders were not appealed.
5. There is no premise to find the mother has satisfied the criteria prescribed by s 65DAAA of the Act and so her application for fresh parenting orders in the Amended Response (Orders 1-39) is dismissed.

1. The father's application for a recovery order in respect of the youngest child is supported by his affidavit filed on 30 May 2025. The mother required the father for cross-examination on his evidence. He adhered to his belief she has breached the orders. He made no concessions which were helpful to the mother.
2. The mother terminated the retainer of her lawyers after the last Court event on 19 May 2025 and she represented herself in these proceedings. She filed a Notice of Address for Service but, in breach of r 2.25 and r 2.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), she did not disclose her residential address in her Notice of Address for Service, in her Amended Response, or separately to the Court.
3. The mother did not file any affidavit in rebuttal of the father's evidence. As an indulgence, she was permitted to give oral evidence, but she only relevantly asserted, without corroboration, that she now lives at a location within 50 kilometres of the Suburb D police station as required by Order 6(a), the address of which new residence she refused to divulge. She admitted her non-compliance with Orders 6(c) and 12 made on 25 February 2025 by having failed to provide a copy of her new lease, saying words to the effect:

I believe I have reasonable reason for not having fully complied with the orders

1. When it was observed she had not given any evidence of such "reasonable reason", she said it was an "issue of safety". Even if it is accepted the mother genuinely fears her safety is somehow threatened by the father, there is no objective evidentiary premise for such fear, for the reasons given for the final orders on 25 February 2025 (at [41]-[44]). The orders then made required her to reveal her new address as a pre-condition to the youngest child's continued residence with her and to keep the father appraised of her address (Orders 6(c) and 12).
2. The mother offered to secretly reveal her address to the Court, but that was unacceptable. The Court only acts on evidence known to both parties. The orders made on 25 February 2025 require the mother to divulge her new address to the father. He is as entitled to know where the youngest child lives with the mother as much as she is entitled to know where the two elder children live with him. The mother's proposed unilateral revelation of her alleged new address to the Court would be no more than an uncorroborated assertion and would deprive the father of the reasonable opportunity to verify it. The mother alleged she has terminated the lease of her former Sydney home, but conceded she still retains the lease of her City E home. She conceded the youngest child's medical providers are still those situated in City E.
3. The mother's desire to keep her address secret is difficult to understand in circumstances where it was uncontroversial the father was aware of the address of her former Sydney residence.
4. The mother tendered some documents (Exhibits M2, M3 and M4), but the documents do not prove the location of her residence.
5. On 7 April 2025, the father's lawyer corresponded with the mother requesting evidence of her compliance with Orders 6 and 12. The mother replied on 11 April 2025, providing a copy of a redacted and incomplete Lodger Agreement, which did not fulfil her compliance with Orders 6(c) and 12 because the address of the property at which the mother was allegedly a lodger was redacted.
6. On 23 April 2025, the father's lawyer corresponded with the mother for a second time requesting evidence of her compliance with Orders 6 and 12. She replied on 6 May 2025, providing a copy of an incomplete Residential Tenancy Agreement, which did not fulfil her compliance with Orders 6(c) and 12 because:

(a) the address of the leased premises is blank;

(b) the lease does not begin until April 2025; and

(c) the lease is unsigned by the lessor (or agent).

1. Several weeks later, on 21 May 2025, the mother furnished the father's lawyer with another copy of the Residential Tenancy Agreement, but this time in redacted form, which still did not fulfil her compliance with Orders 6(c) and 12 because:

(a) the name and contact details of the lessor are redacted;

(b) the address of the leased premises is redacted;

(c) the lease does not begin until Suburb D 2025; and

(d) the signature of the lessor's agent is redacted.

1. To date, the mother has still not provided a copy of a valid residential lease proving her tenancy of a property within 50 kilometres of the Suburb D police station. She also failed to adduce any other evidence of her current residence within 50 kilometres of the Suburb D police station. She could easily have tendered an unredacted copy of her alleged valid lease, evidence of a rental bond payment, or invoices for connected utilities like electricity, gas, or telephone line.
2. Given the unchallenged findings made on 25 February 2025 (at [41]-[44]), the mother's alleged fear of family violence committed by the father is not a satisfactory explanation for withholding such evidence. In the absence of any satisfactory explanation for why such evidence was not adduced, the most likely inference is such evidence would not have assisted the mother's case (Katsilis v Broken Hill Pty Ltd (1977) 18 ALR 181 at 197; IPN Medical Centres (NSW) Pty Ltd v Idoshore Pty Ltd [2008] FCAFC 163 at [28]-[29]).
3. All evidence must be weighed and assessed having regard to the capacities of the parties to adduce and contradict it (see Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454; Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 209 CLR 282 at 330; Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 at [17]). The mother had all the power to positively prove where she lives. The father had none. He could only inferentially prove the negative proposition that the mother does not live within 50 kilometres of the Suburb D police station.
4. The father's evidence, which is accepted, proves the mother's failure to comply with Orders 6(c) and 12. In the absence of any effective rebuttal by the mother, an inference is drawn on the balance of probabilities that she is in breach of Order 6(a) by having failed to establish her residence within a radius of 50 kilometres from the Suburb D police station by April 2025. Consequently, the conditions precedent to the youngest child's residence with the mother have not been fulfilled. The standing orders require the youngest child to live with the father.
5. The father has standing to apply for a recovery order in respect of the youngest child (s 67T). For the reasons published on 25 February 2025, it is in the youngest child's best interests to make the recovery order (s 67V) and proper to make the recovery order in the father's favour (s 67U).

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.