Earle & Earle (No 2) [2025] FedCFamC1F 483 (22 July 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 Earle & Earle has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. By way of Application in a Proceeding filed on 14 July 2025 ("application"), the mother sought that the final hearing in respect of her time with the children be adjourned, as follows:
   1. That the currently listed Final Hearing, commencing on 8 September 2025 be vacated.
   2. That the matter be listed for Final Hearing, commencing on a date after 15 December 2025.
2. The mother's application was opposed by the Independent Children's Lawyer ("the ICL") and the father, as outlined in his Response to Application in a Proceeding filed on 17 July 2025 ("response"). In his response, the father also sought that the mother pay his costs of and incidental to the application, on an indemnity basis.
3. In support of the application, the mother filed an affidavit on 14 July 2025 and in support of the response, the father filed an affidavit on 17 July 2025. The mother also filed a further updated Notice of child abuse, family violence or risk on 16 July 2025 ("Notice of child abuse, family violence or risk"), which became Exhibit 3.
4. On 18 July 2025, I heard submissions from the parties in respect of the application and the response, in circumstances where each party agreed that the hearing was ready to proceed on that occasion and where that course would be the most efficient use of court resources. The parties were each legally represented.
5. At the conclusion of the hearing, I made orders, as are set out in full above, ultimately dismissing the application and reserving costs. I indicated to the parties that I would later provide written reasons in support of my determinations.

1. The parties have been involved in protracted litigation in respect of the care arrangements for their children over many years. The proceedings commenced in 2018. On 5 August 2021, Hannam J delivered reasons following a hearing that first commenced in November 2020 and concluded in May 2021. Final orders were made that provided for the father to have sole parental responsibility for the children, for the children to live with him and spend supervised time with the mother.
2. The mother filed an Initiating Application on 7 June 2023 which had the effect of seeking a reconsideration of the final orders made by Hannam J. The relief sought by the mother was opposed by the father and the ICL. For various reasons, it wasn't until 28 January 2025 that the s 65DAAA of the Family Law Act 1975 (Cth) ("the Act") matter was heard by Schonell J. His Honour's reasons (Earle & Earle [2025] FedCFamC1F 84) ("Earle") (and which became Exhibit 4), were delivered on 18 February 2025.
3. Ultimately, Schonell J in Earle, determined that:
   1. On balance, having regard to all of the matters referred to above, the evidence of both parties, the mother's experts and the opinions of the single expert, I am not satisfied that it is in the best interests of these children for a reconsideration of the orders for parental responsibility and primary care with the father.
   2. I am however satisfied for the reasons given earlier that there has been a significant change of circumstances and that it is in the children's best interests for there to be a reconsideration of the time the children spend with the mother as contemplated by s 64(B)(2)(b) of the Act. To give effect to these Reasons, directions will be made for the filing of an Amended Initiating Application and Amended Response and for the matter to be listed before the Case Management Judge on a date to be fixed.
4. On 18 June 2025, I made trial directions listing the matter, for the reconsideration of the time that the children spend with the mother only, for final hearing over four days commencing on 8 September 2025. That scheduling provided almost three months before the commencement of the final hearing.

1. Central to the mother's application for adjournment is her assertion that her two treating psychiatrists, Dr V and Dr U, are unable to attend the dates on which the final hearing is listed.
2. I note that both Dr V and Dr U have previously affirmed affidavits on the mother's behalf in the s 65DAAA proceedings and further evidence from them would be way of update.
3. From the material before me, it appears that the following occurred prior to the mother's filing of the application:

(a) On 23 June 2025, the mother's solicitor wrote to chambers requesting that the final hearing be adjourned, and at that time, asserted that the mother was unavailable on the listed trial dates.

(b) Later that day, the father's solicitors responded to that email indicating that such an adjournment was opposed by the father, outlining the basis for his opposition (as contained in the father's affidavit at [5]).

(c) The mother's solicitors were requested by chambers to particularise why the mother was unavailable on the listed trial dates.

(d) On 4 July 2025, the mother's solicitor indicated that it was in fact, Dr U who was unavailable on the dates allocated for the final hearing. There was no suggestion from the mother, at that time, that Dr V was not available on the final hearing dates.

(e) It appears that further communication was exchanged between the parties' legal representatives and the ICL, with the mother seeking the consent of the parties to adjourn the final hearing (that email sent by the mother's solicitor on 8 July 2025 became Exhibit 10).

(f) No such agreement was reached and the mother filed this application.

1. The mother's evidence - in support of her application to adjourn the final hearing and particularly, as to the availability, or lack thereof, of Dr V and Dr U on the allocated final hearing dates - suffered from several deficiencies. The mother's affidavit appeared to suggest that she had communications with each of her treaters about the final hearing dates and that each of them had advised her that they were unavailable on those dates. However, this was not stated by the mother clearly or with any particularity in her evidence.
2. At best, I can infer that there appear to have been further discussions between the mother and, at least, Dr V about alternate dates. The mother produced emails between her and Dr V on 8 July 2025, where the mother proposes to Dr V final hearing dates in December 2025, and Dr V thereafter confirms their availability on those dates (Exhibit 9). That email exchange appeared to presume prior communication (not in evidence), at which time perhaps the existing trial dates and Dr V's difficulties were communicated. However, there was no such communication produced with respect to Dr U, despite Dr U being the treater whom the mother's solicitor said was not available, in her email of 4 July 2025.
3. I advised the mother's solicitor, who appeared on her behalf at the hearing, that the mother's evidence was deficient in that there was no particularisation of any conversation or exchange between the mother and each of her treaters that would establish the foundation for the assertion that they were "not available". The affidavit was largely silent as to any discussions by the mother with each of her treaters, in which they advised of their unavailability on the dates allocated, nor was there any evidence to establish the reasons and the extent of the difficulty. Even if I accepted the mother's evidence at its highest, it was at best a bald statement by the mother to the effect that, for unexplained reasons, her treaters were not available on the listed trial dates.
4. The mother's solicitor then sought to address me about a range of "urgent" issues relating to the risks which the mother allegedly observed with respect to the current care of the children and referred me to the recent Notice of child abuse, family violence or risk. I have read that document, and I indicated to the mother's solicitor that the document appeared to set out further examples of behaviours which the mother suggests are of concern to her, relating to the children, and which may be suggestive of certain risks for the children. Whilst, for the most part, these matters are not new on the mother's case, I note that only a limited number of those examples post-date the decision in Earle. These asserted risks in fact weigh against an adjournment of the final hearing.
5. Having pointed to the mother's Notice of child abuse, family violence or risk to support submissions as to urgency, the mother's solicitor then submitted that there would be no burden or disadvantage to the father and the children upon the adjournment, because there would be no change to the current care arrangement in the meantime. This submission was at odds with the submission to the effect that the court should be concerned, as a matter of urgency, to consider what ought to be done about the mother's allegations of the children's sexualised behaviour.
6. While not part of her formal application, the mother's solicitor suggested that this matter should be allocated to the Magellan List, and (if I understood the submission correctly) such should occur prior to the matter being allocated a final hearing date (and therefore, if the hearing was adjourned, the court could now take steps to refer the matter to the Magellan List). It was difficult to see how at this late stage of the case management pathway, there would be any real advantage to the children or the parties in making such a referral.
7. The ICL submitted that, in essence, the Magellan List is a case management pathway to address matters, that meet the requisite criteria, as effectively and efficiently as possible and with the appropriate allocation of additional resources, including report preparation. In this matter, a comprehensive report from a single expert has already been obtained and the single expert is available on the presently allocated final hearing dates. The single expert report became Exhibit 5. I agree with the ICL that there would be no appreciable benefit to this family, at this late stage, in referring the matter to the Magellan List.
8. The mother's solicitor made submissions with respect to the importance of the evidence of the mother's treaters to her case. While that may be so, I do not have any evidence before me about the particulars of the difficulties either of those treaters have in preparing updated evidence nor the basis of either of their asserted difficulties with the final hearing dates. There may be ways that these clashes can be accommodated, including interposing their evidence at particular points in the hearing and, of course, the court readily accedes to requests for expert witnesses to give their evidence by audio-visual means. Under the filing directions for the final hearing made on 18 June 2025, the date for filing of affidavit material by the mother has not yet passed.

1. The father is ready to proceed with the final hearing on the dates allocated. In opposition to the adjournment, the father's counsel emphasised the serious burden these proceedings represented for his client and the children. It was submitted that these children had now been involved in court proceedings for around seven years and that the father strongly opposed any delay to the final hearing. The father's Costs Notice (Exhibit 8) makes clear the significant financial burden of the proceedings for the father (which must, inferentially at least, impact upon the children who are in his primary care and who are financially dependent upon him).
2. These are proceedings for parenting orders and about which the best interests of the children are paramount. These proceedings are governed by Division 4 of Part XI of the Act (Principles for conducting child-related proceedings and property or other proceedings).
3. The court is required to give effect to the principles in that section when conducting child-related proceedings (s 102NE of the Act). Principle 1 requires the court to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings. Principle 2 requires the court to actively direct, control and manage the conduct of the proceedings. Principle 3 directs that proceedings are to be conducted in a manner which safeguards the children and parties to the proceedings, from being subjected to or exposed to abuse, neglect or family violence. Under Principle 4, the court is to ensure that the proceedings are, as far as possible, to be conducted in a way that promotes co-operative and child focussed parenting. Finally, Principle 5 requires the proceedings to be conducted without undue delay and with as little formality and legal technicality and form, as possible.
4. Further delay in the resolution of these proceedings is not consistent with the principles summarised above. If the matters about which the mother expresses concern (as set out in her Notice of child abuse, family violence or risk) are established, the children may require additional supports and assistance. The request for adjournment of the final hearing is not consistent with the timely investigation and resolution of those serious contentions. At a more fundamental level, the mother's substantive application is to the effect that the children's best interests are served by them spending significant, unsupervised time in her care. This second round of contested parenting proceedings, commenced by the mother, have been on foot since June 2023. The prospect of further delay is unpalatable and inconsistent with the principles for conducting child-related proceedings.
5. The parties to the proceedings, their legal advisors, and the court, must also act consistently with the overarching purpose (as made clear in the Central Practice Direction) and now set out in s 95 of the Act:

95 Overarching purpose of the family law practice and procedure provisions

(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:

(a) in a way that ensures the safety of families and children; and

(b) in relation to proceedings under this Act in which the best interests of a child are the paramount consideration - in a way that promotes the best interests of the child; and

(c) according to law; and

(d) as quickly, inexpensively and efficiently as possible.

Note: For family law practice and procedure provisions, see subsection (4).

(2) Without limiting subsection (1), the overarching purpose includes the following objectives in relation to proceedings under this Act:

(a) the just determination of all such proceedings;

(b) the efficient use of the judicial and administrative resources available for the purposes of courts exercising jurisdiction in such proceedings;

(c) the efficient disposal of the overall caseload of courts exercising jurisdiction in such proceedings;

(d) the disposal of all such proceedings in a timely manner;

(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3) The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make applicable Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

(4) The family law practice and procedure provisions are the following, so far as they apply in relation to proceedings under this Act:

(a) the applicable Rules of Court;

(b) any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia or any other court.

1. I am mindful of the resources which are necessarily and properly allocated to this matter. Those resources include the court's time. In Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 French CJ made clear at [23] that courts are required to be mindful of the wider public interest in ensuring that the limited court resources are applied and utilised effectively and efficiently. The submission made on behalf of the mother - that the final hearing dates are not suitable for two of her witnesses (without explanation) and that instead, particular dates in December 2025 or sometime in January 2025 suit the convenience of those witnesses - misunderstands the demands upon the court, and does not have regard to the circumstances of the father, his advisers, and the ICL. Moving these dates at this time may result in other parties and other families experiencing further delay in the hearing of their pending cases.
2. It was submitted on the father's behalf that his legal advisers, including counsel, have made themselves available for the dates on which the final hearing is allocated. The ICL is also available and strongly submitted that the children's interests were served by the matter being finalised as soon as possible.
3. I was advised that the single expert is available for the final hearing as presently listed. I place considerable weight upon that fact and the risk that if other dates were contemplated, they may not suit the single expert, and this family may face even further delay.
4. I advised the mother's solicitor that even if I had been inclined to adjourn the matter and seek alternate dates, there are none available in December 2025 or in January 2026 and that the earliest the matter could be heard would be in February or March 2026. A delay of a further five or six months is unacceptable given the issues in this case.
5. All the above considerations, including proper and continuing risk management for these children, as urged by the mother, weigh in favour of the existing final hearing dates being held.
6. Leaving aside their asserted difficulties for the final hearing dates, I understand from submissions made on behalf of the mother that she remains uncertain if her two medical treaters will be able to prepare updating affidavits within the present filing timetable. The ICL also helpfully submitted that, if necessary, upon the mother providing particularised information about the asserted difficulties for her treaters, an extension of time for the filing of those witness affidavits might be agreed.

1. The best interests of these children weigh heavily against any further delay in the final hearing. I am also satisfied that the interests of justice and procedural fairness between the parties and the proper use of court resources, requires the final hearing dates to be preserved. I have otherwise made directions for the mother to communicate with the father and the ICL, with particularity, about the filing of affidavits by her witnesses, and the issues she alleges with respect to those matters. If that aspect of the matter requires some additional management, I have given liberty to the parties to seek the relisting of the matter by way of approaching chambers.
2. I have also reserved costs, as was sought on behalf of the father, as indicated during the hearing.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Simpson.