Earle & Earle (No 3) [2025] FedCFamC1F 757 (28 October 2025)

1. The mother's Notice of Discontinuance was filed on 22 August 2025 in accordance with r 10.02 of the Rules. That document was filed in accordance with the Rules, at least 14 days before the day fixed for the final hearing. The acceptance of that document, without more, would have the effect of discontinuing the applications, nominated by the mother in her Notice, being those filed on her behalf on 6 June 2023 and 25 February 2025.
2. Of course, as the Rules make clear, the proceedings before the court were not concluded, even with the filing of the mother's Notice of Discontinuance, and the final hearing of the parenting matters remained on foot for determination. The father, the ICL and the mother, were subsequently advised by email that the matter would still proceed on the final hearing dates. In those circumstances, I accept that the father and the ICL anticipated that the matter was likely to proceed on an undefended basis.
3. Having attempted to file her Application in a Proceeding after 5.00 pm on 5 September 2025, that application fell to be dealt with by the court on 8 September 2025. While the mother's counsel did not formally seek leave to do so, I regarded the mother as implicitly seeking leave to file that Application in a Proceeding such that it could be heard that morning, and to read her affidavit sworn/affirmed on 5 September 2025 in support. I approached the hearing on that basis.
4. For the purposes of this determination, I accept the submissions of the mother's counsel that I should infer from the mother's evidence that she filed the Notice of Discontinuance without the benefit of legal advice.
5. In summary form, the authorities referred to previously make clear that in considering an application to set aside a Notice of Discontinuance, a court would have regard to the following:

(a) Has the Notice been procured by fraud or has there been an abuse of process leading to the lodgement of the Notice?

(b) Is the revocation of the Notice necessary to avoid an injustice?

(c) Was the Notice filed as a product of an agreement that was void or voidable?

(d) Did the applicant knowingly and voluntarily file the Notice of Discontinuance?

(e) Did the filing of the Notice otherwise involve an abuse of process?

(f) Is it necessary to set aside the Notice of Discontinuance in order to ensure that the court's processes do not cause an injustice?

(g) If the notice was to be set aside, does the underlying substantive application have a reasonable prospect of success?

1. Justice Wilson in Cao & Trong at [55] also expressed the following propositions (which His Honour described as "not grounded in authority" but directed to the question of whether the justice of the situation favours the making of the order to set aside the Notice of Discontinuance):

a) whether a valid explanation is given why the notice of discontinuance was filed in the first place; > > b) whether any prejudice is occasioned to either party by the grant of an order setting aside the notice of discontinuance or, conversely, by the refusal to grant such an order; > > c) whether in all the circumstances it is just to set aside the notice of discontinuation; and > > d) whether on discretionary grounds an order should be made setting aside the notice of discontinuance.

2. The mother's affidavit (set out at paragraph 23 above), fails to provide any relevant evidence to assist the court in determining the matters which authority suggests are relevant in consideration of her application to set aside the Notice of Discontinuance. While the mother's counsel made submissions to the effect that the court could again infer that her client had made a poor decision which she regretted, that submission does not advance matters.
3. The mother does not suggest that the Notice has been filed as a product of fraud, nor any indication that there has been an abuse of process leading to its lodgement. There is no evidentiary basis (nor submission made) that the revocation of the Notice is necessary to avoid an injustice or that it was not filed voluntarily and willingly. Similarly, there is no proper basis to suggest that setting aside the Notice is necessary to prevent the court's processes causing an injustice.
4. Even the more expanded inquiries, suggested by Wilson J (as above), when assessing whether the Notice should be set aside, do not assist the mother given the limitations of her evidence.
5. There is no evidence which would permit consideration of any of the other matters, summarised above, on behalf of the mother.
6. The mother is the author of her own ills. Accepting that, as was urged upon me, the mother filed her Notice without the benefit of legal advice, she re-engaged her solicitors and they prepared these documents on her behalf. Even with the benefit of legal representation, the mother has not placed evidence before the court which would relevantly assist in the determination of this application.
7. I was not persuaded that the father, having been a respondent to the mother's further proceedings, commenced by her in 2023, should now be compelled to conduct the final hearing on a compromised basis, with the burdens of last-minute preparation being imposed upon him.
8. The mother did not expressly make an alternate application for an adjournment and that matter was not the subject of any further addresses by the mother's counsel.
9. The mother had not filed her trial documents in accordance with the filing directions made by me. Consequently, even if I granted her application to set aside the Notice of Discontinuance, she would not then have any current evidence before the court. Even if I was persuaded to allow her to read an earlier affidavit, the last one she proffered had been filed in November 2024.
10. I placed significant weight on the nature of these proceedings, being parenting proceedings which had commenced again in 2023 on the application of the mother. Orders had been made, at the conclusion of the final hearing in 2021, which provided for the children to live with the father and particular orders about the time the children spend with the mother, including as to supervision of that time. It was the mother who maintained that those orders were no longer meeting the best interests of the children, but the mother offered no explanation for her decision to discontinue her applications in August 2025.
11. I am required to take into account, not just the interests of the mother in bringing her application but also to consider the procedural fairness implications, if any, for the father and the impact of these changes, even if inferentially, upon the children. Such a course would impose upon the father and the ICL the burden of last-minute preparation for a final hearing which is unreasonable and is not consistent with the conduct of proceedings in accordance with the overarching purpose (s 95 of the Act).
12. In parenting proceedings, the court is required to give effect to the principles in s 102NE of the Act. Principle 1 requires the court to consider, in determining the conduct of the proceedings, the needs of the child concerned and the impact that the conduct of the proceedings may have on the child. 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.
13. Absent a satisfactory explanation for her changed mind and the timing of such, I was offered no basis to justify why the mother should be excused from compliance with the Rules of this court with respect to the preparation for, and conduct of, final hearings and the consequences of discontinuing proceedings. This is especially so in circumstances where the mother was legally represented, again, when she filed this Application in a Proceeding and when the matter was heard.
14. The mother made a choice to file her Notice of Discontinuance in July 2025. On the eve of the final hearing, the mother determined to file an application, seeking to set aside that Notice. She has similarly made a choice not to explain any matters which informed her decision making but simply urges the court to accept that she may be prejudiced. At its highest, the mother effectively argues that for reasons which are not articulated, she has changed her mind and seeks the court's indulgence to rescue her from the effects of her earlier decision - which decision, she now asserts, is the subject of regret.
15. Given the state of the mother's evidence, I was not persuaded as to any of the matters which authority suggests should be taken into account in applications of this nature. I have regard to the overarching purpose (as expressed in s 95 of the Act) and the principles for the conduct of child related proceedings, summarised previously. I was satisfied that there would be prejudice to the father in granting the mother's application.
16. Those considerations weighed in favour of dismissing the Application in a Proceeding.

1. Having dismissed the Application in a Proceeding, I invited submissions as to the nature of the undefended hearing which would then occur. The father's counsel indicated that he would support the mother having an opportunity to cross examine the father and the single expert (subject to certain arrangements being made as to payment for the expert's attendance) and to make submissions against the orders sought by the father (and the ICL). That approach was also supported by counsel for the ICL.
2. I was satisfied that the best interests of the children would be achieved by the final hearing proceeding, on an undefended basis, but with the mother (through her counsel) being able to participate (and to act as contradictor).
3. Rules 10.26 and 10.27 of the Rules address the powers available to the court in the event that a party does not comply with particular orders and directions:

(1) For the purposes of rule 10.27, an applicant is in default if the applicant fails to:

(a) comply with an order of the court in the proceeding; or

(b) file and serve a document required under these Rules; or

(c) produce a document as required by Division 6.2.2; or

(d) do any act required to be done by these Rules or the Family Law Regulations; or

(e) prosecute the proceeding with due diligence.

(2) For the purposes of rule 10.27, a respondent is in default if the respondent fails to:

(a) give an address for service before the time for the respondent to give an address has expired; or

(b) file a response before the time for the respondent to file a response has expired; or

(c) comply with an order of the court in the proceeding; or

(d) file and serve a document required under these Rules; or

(e) produce a document as required by Division 6.2.2; or

(f) do any act required to be done by these Rules or the Family Law Regulations; or

(g) defend the proceeding with due diligence; or

(h) prosecute with due diligence any application the respondent has made in the proceeding.

(1) If a party is in default, the court may do any of the following:

(a) order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the party;

(b) set aside a step taken or an order made;

(c) order that a step in the proceeding be taken within the time limited in the order;

(d) order costs;

(e) prohibit the party from taking a further step in the proceeding until the occurrence of a specified event;

(f) make any order that is to take effect if the party does not take a step ordered by the court in the proceeding in the time limited in the order;

(g) proceed on the non defaulting party's evidence together with:

(i) if considered appropriate by the court - such evidence as the defaulting party has filed; and

(ii) such evidence as tendered during cross examination by the defaulting party; and

(iii) submissions by either party limited to the matters that are the subject of evidence;

(h) in exceptional circumstances - proceed on the non defaulting party's evidence without hearing from the defaulting party.

(2) The court may make an order of the kind referred to in subrule (1), or any other order, or may give any directions, and specify any consequences for non compliance with the order, that the court thinks just.

1. Consistent with authority (including for example, Storstrand & Storstrand [2024] FedCFamC1A 128) and consistent with r 10.27(1)(g)(ii) and (iii), I indicated that I would allow the mother's counsel to cross examine the father and the single expert, and to make submissions as to the orders to be made, in the best interests of the children. I did not allow the mother to rely upon her evidence filed previously, given the matters observed elsewhere in these reasons.
2. In effect, where the father had adopted the orders sought by the ICL, the mother's counsel was left in a position to argue against those changes, effectively in defence of the 2021 orders.
3. I concluded the first day of the final hearing early to afford counsel for the mother additional time to obtain instructions and prepare cross examination.

1. In light of the orders and reasons of Schonell J, and my determination regarding the mother's Application in a Proceeding, the scope of the hearing was narrow. Both the father and the ICL sought orders which can be summarised as follows (the father adopted the ICL's minute of orders sought which became part of Exhibit 13, save for proposed Order 3(c) - however, the ICL later joined the father in seeking that the mother solely meet the costs of supervision):

(a) That Orders 4, 5, 6 and 9 of the final parenting orders made by Hannam J on 5 August 2021 be discharged.

(b) That the mother's time with the children be reduced (from the time summarised at paragraph 4(c) herein) such that the mother spend three hours of time with the children each month (on the first Sunday of each month), in addition to three of hours of time on certain special occasions, and for the purpose of that time, inter alia:

(i) It be supervised by a professional supervision agency (and from 23 December 2030, supervised at the father's discretion); and

(ii) The mother meet the costs of such supervision.

(c) That changeover occur by the mother or supervising service collecting and delivering the children to the location where the children are to spend time (a public location in E Region or DD Region unless otherwise agreed by the father in writing), or by the mother collecting and returning the children to the father's residence for any unsupervised time.

(d) That the mother's virtual communication with the children be reduced and refined so that (instead of video or phone contact as summarised at paragraph 4(d) herein) the father facilitate telephone communication only between the mother and the children once per month (on the third Sunday of each month between 6.00 pm and 8.00 pm) or at any other time as the father decides.

1. In the circumstances of my decision with respect to the mother's Application in a Proceeding, the mother thereafter indicated that her formal position before the court was for the continuation of the current regime provided for by the 2021 orders.
2. I appreciate, and I indicated to the parties, that I am not bound by either party's position before the court (U v U [2002] HCA 36; (2002) 211 CLR 238), and in deciding whether to make a particular parenting order, I must regard the best interests of the children as the paramount consideration (s 60CA of the Act).
3. The matters to be determined therefore became:

(a) Were the orders sought by the father and the ICL in the best interests of the children; or

(b) Should the orders made in 2021 remain unchanged; or

(c) Was some other variation to the orders (either made in 2021 or as sought by the father and the ICL) (and subject to considerations of procedural fairness) in the best interests of the children.

1. The father relied upon his affidavit filed 28 July 2025. The father was cross examined by counsel for the mother. The single expert report of Dr W dated 22 July 2024 was also relied upon (Exhibit 22) and Dr W was cross examined by counsel for the mother and counsel for the father. Various documents were tendered throughout the proceedings and were made exhibits. I have read and considered those documents.

1. The mother's mental health continues to inform consideration of the best interests of the children. The views of the doctors upon whom the mother had consulted, as evidenced in particular expert reports, had informed the decision of Schonell J in Earle & Earle [2025] FedCFamC1F 84.
2. His Honour's reasons had been provided to the single expert in these proceedings, along with the report of Dr Q (the mother's adversarial expert in the prior proceedings) dated 1 January 2021, and the reports of Dr P (the single expert in the proceedings before Hannam J) dated 7 November 2019 and 2 October 2020.
3. On that basis, I acceded to the oral application of the mother for the reports of those doctors to be made exhibits, given that they had formed part of the evidence in the s 65DAAA proceedings and, or, had been considered by Dr W. Dr Q's report became Exhibit 17 and Dr P's supplementary report (dated 2 October 2020), became Exhibit 18.
4. The mother's mental health and aspects of her functioning (as observed by the father) informed the father's application to reduce the time the children spend with their mother (and as also sought by the ICL). These issues and the evidence relating to the mother's mental health challenges have been longstanding and were addressed fully in the reasons of Hannam J in 2021. Her Honour summarised the state of the evidence about the mother's health at that time and in some instances, made findings (Earle & Earle (No 3) [2021] FamCA 568), as follows:
   1. The expert [Dr P] was of the view that the mother was suffering from a psychotic illness, most likely schizophrenia. The mother's psychotic disorder, in the opinion of the expert, had resulted in a significant deterioration in the level of the mother's functioning as well as some observed disorganised and unusual behaviour. The expert opined that consequently the children are potentially at risk of exposure to unpredictable behaviour when in the mother's care, unless she is assertively treated.
   2. The expert [Dr P] opined that the mother's paranoid delusional beliefs about the father and her persecutory interpretation of life experiences potentially place the children at risk, and that the mother's refusal to engage with an assessment of the son by the CDS places that child at particular risk.

- The mother's expert [Dr Q] diagnoses a delusional disorder as more likely than schizophrenia.

...

- The mother's expert [Dr Q] agrees with the court appointed expert that with the support of a psychiatrist and anti-psychotic medication the mother's mental state could stabilise sufficiently for there not to be significant impairment in her parenting.

- The mother's expert [Dr Q] notes that the mother will be resistant to anti-psychotic medication, as a key feature of a delusional state is the lack of recognition of the person suffering it that their beliefs are delusional and accordingly considerable effort will need to be made to engage the mother, with an important rationale to optimise her ability to care for her children.

...

1. The expert [Dr P] confirmed that both she and the mother's expert [Dr Q] agreed that the mother's beliefs are systematised into a delusional system involving a vast conspiracy.

2. Another reason why the differences in specific diagnosis between the expert [Dr P] and the mother's expert [Dr Q] are ultimately not of great moment in these proceedings, is because, as the expert confirmed, both psychiatrists believe that until the mother is treated any time that the children are to spend with her should be supervised to mitigate the risks associated with potential impairment in her capacity to care for them.

3. The expert [Dr P] remained firm in her view that until the mother engages with the therapy as recommended (being engagement with a psychiatrist who could prescribe antipsychotic medication, engagement with her general practitioner to monitor the potential side effects of that medication and possibly engagement with a psychotherapist) the impediments to her parenting outlined in her report require that the mother's time with the children be supervised.

...

1. ... In these circumstances, I accept the opinion and recommendations of the expert [Dr P] and attach significant weight to them.

...

1. 203 If the mother does not seek treatment or the treatment is insufficiently effective to mitigate the risks that she poses as a result of her mental health difficulties then the expert [Dr P] opines that the current arrangements will also need to be reconsidered given the children's change in circumstances as they mature. It is also the view of the expert that if the mother does not seek treatment such supervision of the children's time with her will be required until at least early adolescence.

...

1. By the time she reassessed the parents one year later in June 2020, the expert [Dr P] had changed her views as to the mother's mental health considerably. The expert was then of the opinion that the mother had become quite unwell and was at that stage suffering from a psychotic disorder which the expert considered was most likely schizophrenia.

...

1. When the parents were assessed for the purposes of the supplementary report, the expert [Dr P] reported that the mother remained firm in her belief that the father was intentionally causing the children harm which the expert opines is a belief the mother holds as a consequence of her psychotic illness. The expert noted that the mother had gone to some lengths to prove that the father was causing harm to the children by seeking medical confirmation that he gave the children laxatives and also withdrawing them from his care. Having observed that there is a risk that the mother may incorporate the children into her delusional thinking, the expert then went on to indicate that there was evidence that this had occurred.

...

1. In these proceedings, both the expert [Dr P] and the mother's expert [Dr Q] give clear, unequivocal and unchallenged evidence that the children's time with their mother must be supervised and cannot progress to unsupervised time until the mother has engaged in treatment for some time. For this to happen treatment must also be assessed to have been effective in reducing or eliminating those symptoms of the mother's illness which impact upon her parenting capacity so that supervision is no longer required to protect the children from those potential risks of harm...

1. In granting the mother the opportunity to revisit the spend time orders, Schonell J had found that he was not satisfied that there had been a significant change in circumstances relating to the mother's mental health functioning (Earle & Earle [2025] FedCFamC1F 84).
2. In her outline of case document (Exhibit 13), the ICL submitted the following:

(a) The evidence remained that the mother suffered from a delusional disorder (as assessed by Dr Q in the report dated 1 January 2021).

(b) Dr W opined, in agreement with Dr Q, that the mother should attend upon a psychiatrist for anti-psychotic medication and psychotherapeutic treatment (either with a psychiatrist or clinical psychologist) for a minimum of 12 months (see 1740-1743 of Exhibit 22).

(c) Dr W supported Dr Q's opinion to the effect that the mother has paranoid and delusional beliefs regarding the father, the police, and professionals, and that those beliefs continued to constitute an unacceptable risk to the children (Exhibit 22 at 1830-1832).

(d) In her engagement with Dr W, the mother rejected the "merit" of those opinions;

(e) Dr W expressed a number of continuing concerns including:

(i) That the mother does not recognise or acknowledge the seriousness of her psychotic illness;

(ii) That there is little, if any, confidence that she can consistently, reliably and appropriately meet the children's needs; and

(iii) Her paranoid and persecutory state of mind concerning the father, statutory services and even the school, suggest that her judgment and decision-making capacity would be largely based on her perceptual distortions and not driven by the children's needs (Exhibit 22 at 2000-2006).

Asserted issues with the current spend time arrangements

1. The father's written evidence includes the following:
   1. [Ms Earle's] time with the children generally proceeds well.
   2. [Ms Earle] usually organises something fun for them, such as attending a play centre or going to the park. Both [Y] and [X] enjoy those visits and tell me all about them when they are home.
   3. [Ms Earle] buys them toys, snacks, and McDonald's or other fast food during each visit. This has been a point of tension at times, as the children have grown accustomed to getting a large amount of toys and sweets during visits with [Ms Earle], and will sometimes be disrespectful if they don't get them. I have raised this with [Ms Earle] in email correspondence, but she has been unresponsive or uncooperative.
   4. FaceTime is much more difficult, as deposed to above. It is generally a stressful event for both the children and me, as [Ms Earle] will be critical of the children if they do not engage with her and make various threats to me about potential legal action if I am even a few minutes late or if the children are distracted.
   5. When the children do not engage with [Ms Earle] or are getting distracted, [Ms Earle] can at times become abusive towards me in front of the children...
2. The evidence of the father makes clear that since the 2021 orders, the mother has made the following allegations and, or, has taken the following steps, responding to matters which she has assessed to be of concern, including:

(a) On 2 September 2023, the mother emailed the father alleging that Y had been thrusting himself sexually (the father's affidavit at [56]).

(b) On 22 September 2023, the mother sent the father an email alleging that Y was regularly simulating sexual acts and indicated that she had made an appointment to see Y's psychologist, Ms BB (the father's affidavit at [60]).

(c) On 25 September 2023, the mother sent an email to Ms BB stating that "friends of mine have said my kids will turn out to be paedophiles ..." (the father's affidavit at [62]).

(d) On 29 September 2023, the mother made a separate appointment with Ms BB, and the mother's brother (who is restrained from coming into contact with the children) also attended without the father's knowledge or consent (the father's affidavit at [63]).

(e) In October of 2023, the mother sent an email to the children's school alleging that the father had been sexually abusing the children at home (the father's affidavit at [67]-[68]).

(f) The mother sent emails to over 11 organisations titled "Sexualisation of my Young Children" (the father's affidavit at [69]-[70]).

(g) On [...] October 2023, the mother made a formal complaint to the Police alleging that the children were being sexualised in the father's household (the father's affidavit at [71]).

(h) In November and December 2023, the NSW Police spoke with the children at their school (the father's affidavit at [75]).

(i) In May 2024, the Department of Communities and Justice interviewed the children at their school (the father's affidavit at [77]-[78]). Officers of the Department of Communities and Justice visited the father's home on two occasions, on [...] May 2024 to interview the father and on [...] June 2024, to observe the children (the father's affidavit at [79]).

(j) On 15 December 2024, the father received an email from the mother stating that "... Y, standing behind X, who was kneeling ... was thrusting his groin forwards and backwards behind her head ..." (the father's affidavit at [87]-[88]).

(k) On [...] July 2025, the father was informed that the Department of Communities and Justice had received a complaint about historical allegations (the father's affidavit at [89]).

1. The evidence makes clear that since the 2021 orders, the mother has interpreted certain actions and comments made by the children to her and, or, in her presence, as being suggestive of some risk to the children in their father's care - including that they were displaying sexualised behaviour that may indicate an underlying risk (of exposure to behaviours or actions by someone, leading to this behaviour). This has been the mother's position since commencing these proceedings in 2023. I note however that the mother also held differently based persecutory views of the father and the risk that he created for the children, in the first proceedings, as made clear in the reasons of Hannam J.
2. As is addressed further below, it is clear that the mother's strongly held views about the risks that she perceives the children experience in the father's care have not abated, despite the interventions and investigations which have occurred prior to this hearing.
3. The father relied upon the mother's Further Updated Notice of child abuse, family violence or risk filed on 16 July 2025 (Exhibit 12). That document makes clear that the mother remained of the view, at the time that document was completed (with the aid of her current lawyers), that the children had been exposed to, and were at risk of, sexual abuse. In that document, when answering "Which orders do you want the court to make to protect the safety of the child?", the mother wrote (Exhibit 12, page 19, question 36):

Children to be removed from the father's care and placed into my sole care.

If the Court finds the children are at an unacceptable risk of harm with the father, that the children spend no time with the father.

1. Those views and the interventions the mother sought, expressed in July 2025, were made, despite the mother having the benefit of Dr W's report and the reasons of Schonell J. Responding to, and the management of those persistent, highly negative views held by the mother, continued to present as a challenge for the father.
2. The evidence made clear that the mother's observations of matters "of concern", as interpreted by her, prompted her to take actions involving third parties involved in the care of the children, including Y's psychologist, Ms BB, and with the staff of the children's school.
3. While the mother's counsel cast those actions as those of a concerned parent who felt she had little other opportunity to engage protectively for the children, another possibility is that her actions are disproportionate, unreasonable and potentially damaging for the children. It also remains probable that the mother's interpretation of events may be impacted by her own mental health functioning, as opined by Dr W. These matters are addressed further below.
4. The ICL submitted in her outline of case document (Exhibit 13), as follows:

... However, the ICL has concerns that the current frequency of the children's time with their mother, inclusive of Facetime communications, is causing disruption and preventing any possibility of settling in the father's care.

1. In her outline of case document, the ICL identified other risks including the mother's continued "campaign" against the father:

... towards third party agencies, persistent allegations of the children being harmed in his care and recording the children's Facetime calls before circulating them to third parties, the ICL is concerned about the long-term disruption this will likely cause the children.

1. The ICL identified that to ameliorate the risk to the children and to ensure their short and long-term safety, the frequency of the children's time with the mother ought be reduced. The ICL proposed that such time occur for three hours, on the first Sunday of each month, supervised by a professional agency, at the mother's cost. The ICL also proposed that telephone communication (rather than Facetime) also occur between the mother and the children during the third week of each month. As previously stated, the father adopted the ICL's position.

1. Dr W's report is dated 22 July 2024 and became Exhibit 22. Dr W observed the parties and the children on 6 March 2024 (the father with the children, the mother with the children, and the children together). Further individual interviews occurred over various dates.
2. Dr W addressed the mother's belief about the father having a cranial shunt which she believes has impacted his behaviour:

When asked about reference, in her affidavit material, to allegations that the father has a tube in his head, [Ms Earle] stated that she had observed said tube and that the father had jerked his head away from her hands at the time she was giving a massage. She indicated the tube was over the father's right ear, going roughly from his fronto-temporal lobe to the base of his ear. She said the father denied ever having any such object in his head. [Ms Earle] went on to explain that the tube might have been impacting the father's behaviour to the degree that was making himself 'extremely' difficult' in terms of family law proceedings, and he "keeps changing his mind". When asked what she believed said tube was for, she said she had spoken to her doctor (psychiatrist) who believed it may have been inserted to drain fluid or something similar from the father's brain. At this point, [Ms Earle] spoke extensively about the father not complying with orders, particularly in relation to deadlines for the disclosure of financial information. [Ms Earle] seemed particularly preoccupied with this issue in explaining concerns with the alleged impact on the father's behaviour by the purported afore-mentioned tube.

(Exhibit 22 at 401-413)

...

Asked why, given she had previously spoken to the father about the alleged tube in his head, she had raised it via text in 2022, [Ms Earle] said that she did not know what the tube was but "something is happening there". She said the tube could not be seen but was reminded she had described it as 'huge' in her text messages (as per the father's July 2023 Affidavit). She believed the tube was influencing his behaviour as it is "always difficult to get a response from him".

(Exhibit at 1387-1391)

1. In his oral evidence, Dr W described the mother as adhering to a belief system which others would regard as faulty. Dr W was concerned that the mother's belief (that the father had a shunt in his head and which shunt, or the underlying health condition it treated, caused the father's behaviour to be erratic in one domain of functioning only, being his engagement with the mother in the family law sphere) was suggestive of continuing delusion.
2. Dr W was cross examined by the mother's counsel, including about the possible "shunt" in the father's head. Dr W, consistently with his written report, confirmed his view that the mother's contention that the "shunt" impacted only one part of the father's behaviour was not consistent with the impact of brain trauma or impairment. Dr W was clear that the mother's contention that such could cause an impact upon only one facet of the father's behaviour, in the family law proceedings only, was not a reasonable deduction. Dr W was very clear that the mother's belief about what the shunt made the father do, was part of a systemised pattern of delusional belief.
3. Separation between the parties occurred in 2019. The father has denied any basis for the mother's contention that she "felt" something in his head (presumably occurring at some point before separation). He has denied ever having a shunt or other object inserted into his head. He made those denials again in his interviews with Dr W and the mother has had the benefit of that report since 29 July 2024.
4. Dr W further opines in his report as follows:

[Ms Earle], in my opinion, experiences a Delusional Disorder, a form of psychotic illness, marked by systematized paranoid and persecutory delusional beliefs primarily about [Mr Earle] which appear fixed and false. Details are given below for such conclusions. To clarify, while [Dr P], in her update report, diagnosed [Ms Earle] with schizophrenia, and opined that the decline in functioning [Ms Earle] had exhibited was further indicative of schizophrenia. However, it is my experience that such decline is also observed in cases of a delusional disorder. Moreover, long-term, untreated schizophrenia would typically involve much more serious unwellness in that [Ms Earle] would have had frequent contact with mental health services and the police by way of scheduling under the Mental Health Act. Furthermore, [Ms Earle] would have been likely to develop hallucinations, grandiosity, and other psychotic phenomena beyond those specific to Delusional Disorder.

I concur with [Dr Q's] recommendation for the mother to attend upon a psychiatrist for anti-psychotic medication and psychotherapeutic treatment (either with that psychiatrist or a clinical psychologist) for a minimum of 12 months before any increase in time for the children is considered and/or a gradual move to unsupervised time. No recommendations regarding a change in arrangements for the children's time with the mother can be made before an assessment of [Ms Earle's] engagement with, and response to, the recommended treatment plan. The treating psychiatrist may opine as to the mother's progress and any changes in arrangements. However, an update Chapter 7 family report is likely to be required given the complexity of the situation, especially [Y's] developmental needs.

I disagree with [Dr Q's] recommendation that supervised time for the mother be increased lest the status quo increase [Ms Earle's] paranoia. I think it is just as likely that increased time would in essence confirm [Ms Earle's] deluded beliefs that the children are safer as a result of more time with her.

(Exhibit 22 at 1730-1751)

...

[Ms Earle] continues to hold beliefs about the father's significant involvement with Victoria Police in the 18 months or so leading up to the separation with no evidence to corroborate such beliefs. She maintains that the father deliberately orchestrates the children's engagement in concerning behaviour principally to undermine her relationship with them in response to his financial settlement grievances. This is similar to her belief that [Mr Earle] was 'obsessed' with the maternal grandfather's death for financial reasons, and indicated the Court might have held similar beliefs about him. Such beliefs are distinctly paranoid in flavour. She also continues to hold beliefs that the father had access to the Coroner's report on the maternal grandfather prior to its release, and that alleged he stated as much in the CRM, for which there appears to be no evidence.

(Exhibit 22 at1756-1764)

...

[Ms Earle] continues to believe that the father in some way influenced her former family lawyers to the degree they declined to represent her, were 'very biased', and only interested in the reward money attached to the maternal grandfather's murder. Such beliefs form part of a paranoid state of mind and have seemingly been present for several years.

[Ms Earle's] communications to [Mr Earle], (as per his Affidavit dated 03/07/2023; paragraph 18), seem bizarre in content, and are suggestive of paranoid beliefs. Furthermore, the email [Ms Earle] reportedly sent to the iPad [Y] uses which [Mr Earle] sighted (dated 9 February 2024), if found to be from the mother, can be considered evidence of a paranoid delusional disorder.

(Exhibit 22 at 1774-1781)

...

[Dr V] further echoed [Ms Earle's] belief that [Mr Earle's] alleged cranial tube, about which she has given inconsistent descriptions, has been affecting his behaviour vis-à-vis family law proceedings. Not unlike her concerns that the father has orchestrated the children to engage in behaviour as a retaliatory action, [Ms Earle] also believes that the tube in question makes [Mr Earle] 'difficult' in terms of family law proceedings. [Dr V], however, would be aware that any neurological disorder would not be specific to family law proceedings. Were [Mr Earle] to be experiencing neuropsychological difficulties due to the alleged tube, there would be evidence in other settings. No such concerns were noted for [Mr Earle] during this assessment; he was interviewed over the course of approximately four hours (combined). Furthermore, [Mr Earle] has more recently commenced work as [an educator]. Neuropsychological problems would be immediately evident in such a cognitively demanding environment, rendering such employment untenable.

(Exhibit 22 at 1788-1798)

...

In the event that [Ms Earle] is not experiencing any 'normal' stress or anxiety, then the concerns for the children that she reports are likely to be a function of her delusional disorder in that she remains suspicious of the father's motivations vis-à-vis the children in that he is using them as a tool against her. This is commensurate with the agitation and forcefulness of her descriptions of the father whenever mention of her grievances towards [Mr Earle] was made. Because [Ms Earle] experiences a long-standing delusional disorder, her primary affect is of anger and frustration as opposed to anxiety/distress, as is frequently observed in cases of delusional disorder. A similar phenomenon is described in [Dr P's] update report, lines 326-329.

[Ms Earle] was also noted to deny any psychiatric symptoms when assessed by [Dr P] and [Dr Q].

That [Ms Earle] believes the children may be at risk from sexual abuse in the father's care is not necessarily bizarre. However, bizarre beliefs such as the father being influenced by the alleged tube in his head, that [Mr Earle] is abusing the children as a retaliation for the financial settlement, and encourages [Y] to physically attack her, have emerged - and are likely to be a result of her longstanding, untreated psychosis. Furthermore, [Ms Earle] reports recording her time with the children as a way to capture 'precious' memories, but it appears more likely that she is attempting to gather 'evidence'. This is modelling unusual behaviour to the children and may be part of the reason [Y], in particular, was somewhat ambivalent about any increased time with the mother. Coupled with comments he made to [Ms BB] about the mother's reaction when [Y] exhibited behaviour she found concerning, and her tendency to ask [Y] 'where did you learn this?', the child may be growing wary of the mother and her motivations.

(Exhibit 22 at 1808-1827)

1. Dr W opined in his report about the children's behaviour with the mother, that:

Although [Ms Earle] has been quite good at maintaining positive interactions during her time with the children, the observations of the children with the mother for this SER point to a level of uncontained, regressive behaviour in the children not exhibited in other settings. Such behaviour cannot be accounted for by the current parenting arrangements alone. That both children have displayed sexualised behaviour when with the mother, regardless of where/how that behaviour started, points to a possible meaningfulness for the children in securing the mother's attention. The fact that [Ms Earle] is fuelled by paranoid beliefs about such behaviour (presumably reinforced by her brother and cousin, especially during Facetime contacts) would be perceived by the children (albeit unconsciously). Such responding by the mother becomes in itself reinforcing of whatever the children do to elicit such responsive behaviour by [Ms Earle]. In essence, a cycle of behaviour - maternal response - repeated behaviour appears to have become established.

(Exhibit 22 at 1937-1947).

1. In his oral evidence, Dr W maintained his concerns with respect to the mother's mental health and functioning, including that he has serious concerns that the mother will impose delusional or paranoid ideation on the children if she has unsupervised time with them.
2. In particular, Dr W did not accept that the mother's mental health functioning could be adequately managed and supported, or that her symptoms would likely abate, in the absence of anti-psychotic medication and ongoing psychiatric or psychological support. He suggested that it was a "longstanding disorder". He rejected the suggestion (from the mother's counsel) that with a change of circumstances or factors which might otherwise inform the mother's poor mental health, that her condition might "abate".
3. Dr W remained concerned that another manifestation of the mother's delusional belief was that she interpreted the behaviours she observed of the children (which caused her concern) as being evidence that the father was being difficult and retaliatory towards her. He considered that view (that the father was abusive in some way, towards the children as retaliation against the mother) as delusional. Dr W said in his oral evidence that the mother could not see that some of the father's responses to her conduct might stem from different motivations. Dr W opined that the mother was not reassured once the underlying issue or behaviour for the child had been resolved (and that the father had not engaged in abuse of the children). He said that the mother had maintained in discussions with him, that the father's conduct was retaliatory in nature against her.
4. Dr W confirmed that he did not think that the father would engage in sexual abuse of a child to retaliate against the mother. Dr W observed that he did not think the mother was "open to answers" other than that the children were being harmed by their father.
5. Exhibit 12 makes clear that the mother's rigid views about the father and the perceived risk he posed to the children had not abated, despite the matters about which she expressed concern in that document being, for the most part, historical and each having been the subject of discussion with the father and, or, investigation or review by relevant agencies (including the school, the Police and the Department of Communities and Justice).
6. It was not controversial that the mother was not receiving anti-psychotic medication despite her engagement with various treating doctors, since the 2021 orders and the recommendations made by Dr P and Dr Q, and as endorsed by Dr W in his 2024 report.
7. In light of the father's evidence (at paragraphs 115 - 122 of his affidavit) about difficulties relating to communication with the mother, Dr W agreed in his oral evidence that it would be appropriate to move any communication engagement with the mother to occur on weekends when the children are less likely to feel tired and, or, be resistant (given their wish to do other things after school). Dr W observed that it appeared that the conflict between the mother and the father had increased and that while audio communication was not the same as video communication, the children will still benefit from hearing their mother's voice and connecting with her.
8. In his oral evidence, Dr W accepted that the time the children were currently spending with the mother was having a positive influence on them. He also accepted that reducing their time with their mother could have a negative impact upon the children.
9. However, Dr W accepted that the contact proposed by the father was sufficient to maintain the children's relationship with their mother but would not promote or further develop that relationship.
10. Dr W agreed that the father's experience of the manifestation of the mother's behaviour, and her delusional beliefs (as set out in the father's affidavit), would be extremely stressful to the father. He concluded that the mother's behaviour would be "very, very stressful for the father" at times and at other times, would remain a low-level stressor. He agreed that stress could adversely impact upon the father's ability to care for the children - and that it would be a serious concern at times.
11. Dr W agreed that it was likely that the reduction in face to face time as proposed by the father could assist to alleviate the father's stress around ongoing contact. Dr W opined that in his view, it would be beneficial to alleviate that stress. Dr W also agreed that there were benefits to the children not witnessing stressful encounters between their parents (particularly related to management of Facetime) and that when such occurs, children can feel that they have caused the stress, and such can then have a negative impact on the child's view of themselves.

1. In determining what is in the children's best interests, I am to consider the matters set out in s 60CC(2) of the Act.
2. The non-hierarchical factors set out in s 60CC(2) of the Act, provide me with a framework to consider the unique circumstances of this parenting matter, while placing the best interests of the children at the forefront of my decision-making. I consider those factors below.

What arrangement best promotes the safety of the children and the parents

1. Section 60CC(2)(a) of the Act, requires me to consider:

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i) the child; and

(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

1. Making orders which promote the safety of the children, and each parent, requires an assessment of risk of harm, and that assessment is undertaken with regard to well established principles.
2. In Chiles & Petrenko (2024) FLC 94-197 ("Chiles & Petrenko"), Tree J explained that:
   1. Orthodox risk assessment and management in parenting proceedings has been the subject of explanation in several full court authorities, most notably in Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092. It bears repeating that the usual course in undertaking the assessment is to identify the contended risk event, gauge the likelihood of it occurring, and then consider the magnitude of harm which might ensue if the risk event does occur. One then considers whether in the light of those matters the risk of harm is acceptable or not.
   2. The purpose of ameliorative conditions is to mitigate a risk of harm from unacceptable to acceptable, such that when the risk analysis is repeated with the ameliorative condition in place, the relevant risk is assessed as acceptable.
3. On the continuation of the 2021 orders, or if orders are made on the application of the father and the ICL, the children will continue to experience their time with the mother to be subject to professional supervision. That will ensure that the safety of the children, at one level, is adequately addressed. However, the father (having adopted the position of the ICL) contends that the frequency of the time occurring between the children and the mother should be reduced, to once a month, on the basis that the current spend time arrangements are not meeting the best interests of the children. One of the considerations which informs that proposal is the extent to which the children may be exposed to risk of harm from contact with the mother, even when supervised, given her focus upon "risk" to the children (the mother has held views that the children are at risk of a range of harms in the father's care since 2021 iteration of these proceedings).
4. In addition, the father and ICL contend that there are some additional risks to the children from the impacts upon the father, as their primary carer, of his continued exposure to stressors relating to managing the mother's engagement with the children.
5. I am satisfied that the summary of events (expressed in paragraph 77 above) is an accurate account of the mother's perception of matters which she considered to be of concern and of the steps taken by the mother, consequently. I accept the father's evidence about these matters. I find that the mother has taken those steps and has involved this family in further investigation by third parties, at times involving the children, such that this family has been immersed in additional review and investigation for a further two years. I infer from the father's evidence about the matters summarised in paragraph 77 above, and I find, that these events will have added considerably to the father's stress, while at the same time, he remains entirely responsible for the care of the children.
6. I am satisfied that the children remain safe and are well cared for by the father who has continued to act protectively towards them.
7. Implicit in the father's application (and that of the ICL) is that reducing the children's time with the mother will act to shield them from the risk of continuing false allegations and unnecessary investigation. Dr W has opined that the mother's identification of risk to the children in the father's care and her actions in response to those matters is a manifestation of her paranoia and delusional beliefs. I accept that evidence. The mother's delusional views of the risk that the father poses to the children have now been expressed, though in different ways as to differently asserted risks, since proceedings were first commenced in 2018.
8. The continuation of a regime of supervised time, shields the children from the most overt expressions of delusional belief by the mother. However, Dr W identified that:

... the observations of the children with the mother for this SER point to a level of uncontained, regressive behaviour in the children not exhibited in other settings. Such behaviour cannot be accounted for by the current parenting arrangements alone. That both children have displayed sexualised behaviour when with the mother, regardless of where/how that behaviour started, points to a possible meaningfulness for the children in securing the mother's attention. The fact that [Ms Earle] is fuelled by paranoid beliefs about such behaviour (presumably reinforced by her brother and cousin, especially during Facetime contacts) would be perceived by the children (albeit unconsciously). Such responding by the mother becomes in itself reinforcing of whatever the children do to elicit such responsive behaviour by [Ms Earle]. In essence, a cycle of behaviour - maternal response - repeated behaviour appears to have become established.

(Exhibit 22 at 1938-1947)

1. I accept that evidence. Dr W has identified this continuing risk to the children in the "cycle of behaviour" identified above, where the children's "uncontained, regressive behaviour" may be a means of securing their mother's attention, which in turn, fuels the mother's paranoid beliefs. All of these considerations weigh in favour of making some change to the current spend time arrangements. I find that the protective elements in the 2021 orders have not sufficiently shielded the children from the risks, identified by Dr W above, and from a range of other behaviours of the mother, which the father identifies as being contrary to their best interests. These matters are explored further below.

1. Y is nine years of age and X is seven.
2. The father's evidence makes clear that the children enjoy their time with the mother. That is endorsed by the observations of Dr W (in his report at pages 9-10):

[X] replied that she would like to have more time with the mother, the father to spoil her, and to live with her mother.

...

[Y] was asked initially about his parents and the ways in which they were similar or different. He seemed surprised at the question, and said after a moment that "They both look after me". When asked if there were other ways in which they were similar or different, he shrugged and advised he did not know.

...

The children joined the mother in the room in which they were previously seen, and [X] gave the mother a big hug, running into her arms to do so.

1. The ICL submitted in her outline of case document that the children have a comfortable and warm relationship with the mother. I find that to be the case.

The needs of the children (developmental, psychological, emotional and cultural)

1. Y has been assessed as having developmental delays and additional needs.
2. Dr W notes in his report (Exhibit 22 at 977-980):

Intellectual, ADHD and reading ability assessments completed by [Mr EE] in May 2023 highlighted low-average intellectual functioning overall, but considerable working memory difficulties, some concentration/distractibility concerns, and reading ability in the very low range. Specific guidance in response to these concerns is provided.

1. The father has supported and facilitated Y attending upon medical practitioners and other providers (including a psychologist, Ms BB) (and as set out in the father's affidavit at [130]). Y has been assisted by a speech pathologist, occupational therapist and tutor.
2. Y enjoys a range of sports (the father's affidavit at [138]-[139]), and the father asserts that he has come a long way socially (Exhibit 22 at 918-919).
3. Dr W reported that X is doing well at school, particularly with reading and "is generally above average" (Exhibit 22 at 928-929).
4. The father confirms that X continues to do well at school, excelling in a range of subjects including visual arts and attends a range of extracurricular activities which she enjoys (the father's affidavit at [142]-[144]).

1. Section 60CC(2)(d) of the Act, requires me to consider:

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;

1. The father has (Order 2 of the orders made on 5 August 2021), and will continue to have, sole parental responsibility for the children, and they have lived with him since October 2020 (Earle & Earle (No 3) [2021] FamCA 568 at [93]).
2. Dr W observed as follows (Exhibit 22 at 2014-2018):

[Mr Earle] has shown a consistent capacity to meet the children's needs. He has arranged for [Y] to have support and treatments in light of his developmental and psychological needs. The children are reported by school staff to be developing well, notwithstanding [Y's] specific needs at present. Such positive feedback is likely to be testament to the care, parenting, and ability to meet the children's needs that the father provides.

1. I am satisfied that the father has the proven capacity to meet the needs of the children, despite the challenges he has experienced since the 2021 orders were made. He has provided very well for the children, in all of their facets of development including providing a consistent, stable and nurturing environment for the children. He has managed to do so, despite reporting having experienced considerable stress in his dealings with the mother, while maintaining his support of the children's relationship with her.
2. A key emotional and psychological need of the children is for them to have a secure relationship with their mother, to the extent that such does not expose them to risk.
3. The father has continued to support the children's relationship with the mother, including inviting her to attend for a family photograph at Christmas each year and sharing with her, photos of the children taken at various activities and events.
4. The father has been consistent and persistent in his support of their relationship with the mother, despite at times, very challenging circumstances, including the mother making and maintaining a range of serious allegations against him and being highly critical of the father's parenting.
5. The evidence satisfies me that the father will continue to make the necessary arrangements to facilitate the needs of the children being met and that he understands and is sensitive to their differing needs. However, the father's capacity to do so is in part a reflection of his capacity for parental sacrifice, given the burdens he has experienced in managing the children's relationship with their mother, in the context of the mother's conduct over the last two years.
6. I find that the father remains sensitive to, and is supportive of, the benefits the children derive from their relationship with the mother.

The benefit to the children of being able to have a relationship with the mother, where it is safe to do so

1. It is not suggested by the father or the ICL that the children do not derive benefit from their relationship with the mother. This was also recognised and endorsed by Dr W in cross examination. The question for determination remains should the time the children spend with their mother, and the mode of their communication with her, remain as is provided in the 2021 orders or be reduced as sought by the father and the ICL (or some other arrangement be put in place).
2. Dr W accepted that the children's relationship with their mother could be maintained if the time they spent with her was reduced as proposed by the father and the ICL. However, he was also clear that the relationship would not be promoted or further developed on that basis. Dr W also agreed in his oral evidence that reducing the time the children spend with their mother would have a negative impact on them, given the benefits they derive from being with her.

The orders that are in the best interests of the children

1. I propose to make the orders as sought by the father (and the ICL).
2. The matters summarised in paragraph 77 above make clear that since 2023, and the commencement of these current proceedings, the mother's perception of risk for the children in the care of the father, has continued to be problematic. The children have been exposed to further investigation by third party agencies, including being interviewed at their school and the mother persists in her view that the children are at risk in the father's care (as made clear by Exhibit 12 and Exhibit 11, being a letter dated 16 July 2025 from her solicitors to the father's solicitors and the ICL about these "concerns").
3. The mother's counsel sought to characterise the actions by the mother as those of a concerned parent who has such limited time with the children, and that management of these issues in some other way is somehow not available to her. I do not accept that submission. The evidence, taken as a whole, does not support the conclusion that such suspicions were reasonably based. Even after the conclusion of investigations by relevant third parties, confirming the absence of risk in the father's care, the mother has not been satisfied or reassured nor has she modified her position.
4. The children have been exposed to frequent challenge and intervention, as has the father, as a product of the mother's distorted perception of the father and his conduct. Exhibit 12 makes clear that the mother believed (including when that document was updated in July of this year) that the children remained at unacceptable risk of sexual abuse or predatory behaviours while living with the father. This is despite the investigations undertaken and the feedback the mother has received about these matters including through the engagement of Dr W (and the matters observed in his report).
5. I am satisfied that the mother's pursuit of investigation about the asserted sexualised behaviours of the children, for around two years, and her adherence to her belief that the father has abused the children to retaliate against her, is without reasonable or proper foundation. Her persistent prosecution of, and adherence to, those beliefs as confirmed in Exhibit 12 is of concern. Dr W observed that there was some risk that the children's behaviour with the mother (being the foundation for her reported concerns) may have been induced by their desire for her attention and engagement.
6. I accept the father's evidence about the nature of the children's behaviours, and I find that the behaviours observed were likely the product of several factors, including their age, stages of development, other vulnerabilities for Y and factors beyond the father's control (including the possible influence of other children at school). I accept that the father has taken steps to properly re-direct and manage unacceptable behaviours of the children if observed by him, and that he is performing his responsibilities to these children very well.
7. Dr W opined in his report (at 1873-1877):

There are no concerns regarding the father's attitude to the children and responsibilities of parenthood. [Mr Earle] ensures the children attend school, medical appointments, and has ensured NDIS funding for [Y] in addition to paying for treatments after such funding expired. The children appear to be developing well in his care and attend extra-curricular activities. This is notwithstanding the allegations the mother has made about alleged psychological and sexual abuse.

1. I accept that evidence.
2. I do not find that the children face a risk of sexual abuse or exposure to inappropriate sexual behaviour in the father's care.
3. The mother has not begun a course of anti-psychotic medication coupled with psychotherapy, as had been long identified in these proceedings as being necessary to address her mental health condition. Dr W was unshaken in his opinion that such a course of treatment and support was essential for any prospect of the mother's health and functioning improving. The mother has been faced with those opinions and recommendations for more than four years (at least since the last proceedings and the 2021 orders were made). She has made certain choices about her engagement with doctors, as reported to Dr W. Those are ultimately matters for her in the management of her own health. The children have had four years of contact with the mother under the 2021 orders during which she has remained without this recommended course of treatment.
4. I am satisfied that aspects of the mother's behaviour over the last two years, summarised previously in these reasons, are likely to be a product of her mental health dysfunction, as opined by Dr W.
5. The evidence with respect to the mother's belief about the father having a shunt in his head (as outlined above), is another example which illustrates the mother's persistent paranoid beliefs. Despite the mother having had the benefit of Dr W's report and knowing that the father has categorically denied the existence of any shunt or similar in his head or body, she persists in holding to her view that such exists and that such may have influenced aspects of the father's behaviour (as perceived by her).
6. I find that the "beliefs" of the mother are a product (at least in part) of her paranoid and, or, delusional thinking, as opined by Dr W.
7. The current spend time arrangements have also seen the children engaged in behaviour which Dr W opines may be suggestive of a cycle of "uncontained, regressive behaviour...not exhibited in other settings". The father is left to manage and support the children consequently and I find that he has done that very well. I accept however that the father experiences the continuing frequency and the nature of the children's engagement with the mother to be a source of considerable and ongoing stress for him.
8. I find that it is in the best interests of the children that the regime of time they spend with their mother be modified. Taking the evidence as a whole, I am satisfied that the current frequency of face to face time is no longer in the best interests of the children. In part, I make that decision on the basis of the burden of that frequency of contact upon the father, not just financially, but given the related conduct of the mother and its impact upon him. I accept, as opined by Dr W, that the father experiences the mother's conduct and aspects of his engagement with her to be a source of considerable stress. He is entirely responsible for the care of the two children, and they are vulnerable to any deterioration in his ability to manage their care. It is not in the best interests of these children (who are wholly dependent upon him) for their primary carer to continue to be exposed to additional stress.
9. I also take into account that the 2021 orders were made when the children were four years younger and the benefits of frequent contact (occurring at least weekly) with the mother, was no doubt a consideration given their ages and stages of development.
10. The children are now older and more fully engaged in activities, in addition to their schooling, and have additional commitments which the father supports. Dr W agreed that the reduction in time proposed by the father and the ICL would still be sufficient to enable the children to maintain their relationship with the mother.
11. I am persuaded that the frequency of the time the children presently spend with the mother may contribute to the risk that the mother's distorted perception of events occurring will "leak" - and while the children have not been exposed directly to delusional beliefs, the father has been required to respond to, and absorb, aspects of the mother's distorted thinking. This has included her beliefs that the children are at risk in the father's care.
12. The children clearly enjoy spending time with their mother and derive benefits from their relationship with her. However, the negative aspects of the maintenance of the spend time arrangements since the 2021 orders were made, have fallen to the father to absorb. I am satisfied that reducing the visits to one occasion a month, along with special occasion time, will be sufficient to ensure the children's relationship with their mother continues and that they continue to experience the benefits of that relationship. This reduced time regime will also allow them more uninterrupted time to develop and progress in the care routine provided by the father.
13. I am satisfied that reducing the frequency of the mother's face to face time with the children may assist in reducing the risk of the children being exposed to unreasonable complaint by the mother, further inquiry, and unnecessary investigation by welfare agencies and the Police. It may also see an abatement in the regressive behaviours identified by Dr W during his observations of the children with the mother.
14. The father and the ICL sought orders which would require professional supervision of the mother's time with the children until 22 December 2030, and any supervision after that date would be at the father's discretion. At that time, Y will be more than 14 years old and X will be 13 years old.
15. While no submissions were made about that order, I am satisfied that the father will approach the question of the need for continuing supervision at that time from a child-focussed and protective perspective (consistent with the findings I have made in these reasons). It is appropriate that there be some consideration of the necessity of supervision at that time, given the age of the children and the inherent limitations of supervision upon the experiences the children will have with their mother. This is also consistent with the opinion of Dr P which informed in part the initial reasons of Hannam J, to the effect that (absent the mother undertaking the recommended anti-psychotic medication and treatment) supervision would be warranted at least until the children were in early adolescence.
16. I have included an order which requires the father to advise the mother in writing of his intentions with respect to future supervision of the children, prior to 1 December 2030 (and each year thereafter). This will ensure the mother knows what is required of her in the future.
17. While the challenges with long term supervision orders are recognised (see B & B [1993] FamCA 143; (1993) FLC 92-357), the benefits of ensuring the children are able to continue to spend time with their mother, shielded from the risks identified in these reasons (and by Her Honour in 2021) while they are still quite young and vulnerable, outweigh those considerations (see Nuan & Lei [2023] FedCFamC1A 211 at [75]).
18. Given the children's age and the demands each of them experiences in their schooling and other activities, I determine that the communication arrangements under the 2021 orders should also be changed. I accept the father's evidence, and I find that aspects of managing the communication arrangements under the 2021 orders have been made difficult for him given the mother's attitude to her obligations under those orders. I accept the father's evidence about those challenges including that there have been occasions when the mother has attempted to communicate with the children outside of the ordered times and using different devices and has sent inappropriate emails to Y's email address. In addition, I accept the father's evidence that on occasions, conflict has developed between he and the mother about managing her communication with the children and the children have been exposed to that conflict. I accept Dr W's evidence, and I find that such exposure is likely to be adverse for the children.
19. Dr W agreed that the children are likely to experience weekday communication as more difficult given they may be tired after school (and consistent with the father's evidence about this). It is appropriate in circumstances where the children are older and have more demands upon their time, that such communication occur on weekends.
20. I am satisfied that the mother has previously recorded the video of her communication with the children (as deposed by the father and admitted by the mother in her engagement with Dr W) and has shared those recordings with third parties, and such has added to the father's concerns and stress in managing the children's relationship with the mother. Dr W had opined that while the mother had asserted she did so to "capture 'precious' memories", he was of the view that such was more likely to be an evidence gathering exercise. I share that view and I find that in making recordings of the communications with the children, the mother was doing so to gather evidence to use against the father. Dr W also expressed concern that such conduct modelled inappropriate behaviour to the children.
21. Consequently, I am persuaded to change the mode of communication to telephone only, thereby excluding video/Facetime calls. Audio calls, I find, will be sufficient to assist in the maintenance of the children's relationship with the mother and have the benefit of shielding the children from the risk of their engagements with the mother being recorded by her.
22. Given the significant reduction in the frequency of the mother's face to face time with the children which will occur because of the orders I make, I am not however satisfied that a telephone call once a month is sufficient. I will order that such telephone calls occur once each weekend (save on the weekend that the children spend face to face time with the mother). This additional frequency will provide a better framework for the children to share with their mother the things they are doing each week and about their lives more generally. This regularity and frequency of contact will also assist the children in remaining connected with the mother, assisting them given the reduction of the face to face contact with their mother.
23. The telephone communication orders proposed by the ICL, and adopted by the father, expressed such occurring "between 6:00pm - 8:00pm". For an abundance of caution, the orders I make will make clear that the telephone call is to commence in that time window, but it is not to be expected by the mother or the father that the children are required to speak to the mother for the entirety of that period. The call duration will by necessity be shaped by the children and the extent to which they wish to continue their discussions with the mother. It is to be anticipated that on some occasions the calls may be longer and on others, the calls may be short, as a child may have less to say or be tired or otherwise inclined to do other things. If that occurs, as commonsense suggests will be the case from time to time, the parents will need to be supportive and understanding of the children in those circumstances.
24. The other aspects of the spend time orders (as to the location of the supervised service and makeup time in certain circumstances and the mechanics of changeover) were not the subject of specific submission. However, they reflect equivalent orders made in August 2021 (save that the location of the supervised contact reflects the current living circumstances of the children).

1. Who ought to bear the costs of the mother's supervised time with the children was an issue raised by the parties and is a matter that I take into consideration, in my overall assessment, under s 60CC(2)(f) of the Act.
2. The current orders provide that "if time is to be supervised by a private agency, the costs of supervision are to be borne by the parties equally".
3. On the current regime, the father accepted that the mother's share of the supervision costs is around $300 per week.
4. I gave the mother leave to prepare and tender a Financial Statement (Exhibit 7). In that document, the mother asserts that:

(a) She has a total average weekly income of $407;

(b) She has average weekly expenses in the amount of $1,032 (it remains unclear as to whether that amount includes the asserted costs of supervision and the expenses relating to those supervised visits, which the mother includes under "Personal expenses you pay for the benefit of others" (Part H) in the amount of $538);

(c) Her brother pays her rent in the amount of $847 per week and utility-based expenses in the amount of $100 per week (as set out under Part F of Exhibit 7); and

(d) She otherwise has no available assets of any significance.

1. In final submissions, the mother's counsel suggested that if the mother paying all the costs of supervision would result in the mother securing a greater opportunity to spend time with the children (to "protect the orders that were made in 2021 as they stand"), then her client would embrace that outcome.
2. Under the orders I make, the frequency of the spend time arrangements will reduce (to once each month and on other special occasions, including Christmas).
3. The evidence makes clear, and I find, that the father is meeting the overwhelming majority of the costs of caring for these children, with limited continuing financial assistance from the mother. I find that the mother has been behind in her child support obligations and there were arrears of child support of $2,186.52 (as of 17 July 2025). The evidence does not reveal the current level of child support arrears; however, I infer that some obligation remains given the mother's modest income. I note that her periodic child support of $375.02 per month, which is the product of the statutory formula and reflects the mother's low income, will provide little real assistance to the father in meeting the needs of the children.
4. I am not persuaded that the father should be equally responsible to meet the costs of supervision in circumstances where the evidence makes clear that he is already required to meet the costs of the children's support with irregular and, or, limited financial assistance from the mother.
5. I am persuaded that it is proper that the mother, in these circumstances, should meet the costs of the professional supervision in full. It was submitted that the reduction in the frequency of time as now provided in these orders, will result in the mother paying an amount towards the supervision which is similar to that which she has paid previously and, on that basis, it is likely the mother will be able to accommodate that requirement. In any event, given the other responsibilities the father carries for the care of the children, I am satisfied that this outcome is appropriate.

1. The father's counsel made an oral application that the mother pay his costs of and associated with her Application in a Proceeding with respect to her Notice of Discontinuance. He also sought costs with respect to the mother's Application in a Proceeding filed on 14 July 2025, which application was dismissed on 18 July 2025, with costs reserved (Earle & Earle (No 2) [2025] FedCFamC1F 483).
2. The mother, through her counsel, opposed the making of a costs order.
3. Pursuant to the Act, unless the court is of the opinion that there are circumstances that justify the making of a costs order, each party is to bear their own costs (s 114UB(1)). In the event the court is persuaded that there are circumstances which justify the making of a costs order, the court may, subject to s 114UB(3), s 114UC, s 114 UD and the Rules, make any order for costs that "the court considers just" (s 114UB(2)).
4. Section 114UB(3) of the Act outlines the considerations that the court must have regard to when determining what costs order (if any) should be made, as follows:

(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. In considering the exercise of discretion to make a costs order and having regard to the matters set out in s 114UB(3) above, I am guided by authority which makes clear that no single factor will be determinative and not all the listed factors need to be satisfied before an order for costs may be made (see for example Prantage & Prantage (Costs) [2014] FamCA 850 at [12], citing Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) & Fish [2005] FamCA 158; (2005) 33 Fam LR 123).
2. The father relied upon the following documents in support of his claimed costs (which bundle became Exhibit 4):

(a) A Costs Disclosure Agreement dated 17 July 2024, which provides for the underlying costs agreement between the father and his solicitors;

(b) A Costs Notice dated 5 September 2025; and

(c) A signed barrister's Costs Agreement dated 12 October 2024 as between the father and his counsel.

1. The father sought that the following be paid by way of costs (a total sum claimed of $25,433):

(a) An amount of $24,255, for costs thrown away, sought on an indemnity basis (solicitor's costs in the amount of $7,755 (including disbursements) and counsel's fees in the amount of $16,500, with counsel for the father particularising the foundations for those figures as set out below); and

(b) A scheduled amount of $1,178 (counsel) with respect to the required attendance regarding the mother's earlier Application in a Proceeding, dismissed on 18 July 2025, with costs reserved.

1. Counsel for the father identified the amounts which constituted the totals referred to above at paragraph 183(a), as follows:

(a) Solicitor's costs (totalling $7,755):

(i) $1,430 in relation to the mother's Application in a Proceeding filed 14 July 2025;

(ii) $2,640 being the father's solicitor's costs from 5.00 pm on 5 September 2025 until 5.00 pm on 7 September 2025 (work done that weekend on an urgent basis);

(iii) $2,640, being a reduced agreed rate for the father's solicitor's attendance on 8 September 2025; and

(iv) A disbursement of $1,045 being the cancellation fee incurred for the father's share of the fees of Dr W.

(b) Counsel's fees (totalling $16,500):

(i) $3,300 for work done on Saturday, 6 September 2025 (preparation);

(ii) $6,600 for work done on Sunday, 7 September 2025 (preparation); and

(iii) $6,600 for counsel's attendance on the first day of the final hearing, 8 September 2025, which was contended as being exclusively utilised to deal with the mother's application to set aside the Notice of Discontinuance.

1. I propose to deal with the father's application in respect of costs in three parts:

(a) Costs relating to the mother's Application in a Proceeding filed 5 September 2025 (regarding the Notice of Discontinuance) (with those costs sought, as I deduce from the above, totalling $21,780);

(b) Costs relating to the mother's Application in a Proceeding filed 14 July 2025 (regarding the adjournment application) (with those costs sought totalling $2,608, as set out at paragraph 183(b) and 184(a)(i) above); and

(c) The disbursement identified by the father as at paragraph 184(a)(iv) above (in the amount of $1,045).

1. I have had regard to the mother's Financial Statement (Exhibit 7). The mother has, it appears, applied more than $226,973 (as at 28 January 2025 in accordance with Exhibit 5) to this iteration of the proceedings and that such sum has been paid (Exhibit 7 does not report any amounts owing to her lawyers). Exhibit 6, the mother's Costs Notice filed 7 September 2025, illuminates further legal costs paid by the mother since the filing of her Costs Notice on 28 January 2025 (Exhibit 5).
2. Exhibit 7 makes clear that the mother has a low income. I also note that the father deposes to the mother having a child support obligation which is presently in arrears. The mother does not own real property, and I otherwise refer to the matters summarised in paragraph 171 above as to her financial circumstances. I have made an order that the mother will be solely responsible for the costs of the supervision of her time with the children. In any event, the mother has been contributing to 50 per cent of the costs of supervised time since the 2021 orders (which was occurring with greater frequency than has been determined by me in these reasons).
3. The father is entirely responsible for meeting the day-to-day needs of the children. The father is employed as an educator and works full time. I accept the father's oral evidence that certain supports were provided to Y under the National Disability Insurance Scheme ("NDIS"), which are now no longer available given Y's age.
4. Neither party is in receipt of a grant of legal aid.

1. It was urged upon me in consideration of the father's application for costs, that consideration of s 114UC(3)(c) and (e) would weigh in favour of making an order that the mother pay the father's costs.
2. As has been set out in these reasons, the mother's Application in a Proceeding was entirely unsuccessful and the hearing of that application occupied the majority of the first day of the final hearing. In any event, because of that application, hearing time was dedicated to its determination. The father has incurred additional costs, in considering and responding to that application.
3. The observations made previously in these reasons as to the deficiencies in the mother's evidence in support of her Application in a Proceeding are apposite to my determination that this is a matter where an order for costs ought to be made.
4. I am satisfied that there are circumstances which justify making a costs order and departing from the general principle in family law proceedings that each party bear their own costs. The mother's actions in discontinuing her applications before this Court, before seeking to set aside her Notice of Discontinuance on the eve of the final hearing and where she provided little evidence to explain her actions, have resulted in additional costs being borne by the father.
5. Having dismissed the mother's Application in a Proceeding, I am persuaded that it is not appropriate that the father should bear, without adjustment, the additional costs he incurred in engaging in those proceedings. I am satisfied that the mother should make some contribution to the father's costs.
6. It was urged upon me that the mother should meet those costs on an indemnity basis.
7. The purpose of a costs order remains compensatory, not punitive (see Fowles & Fowles (No 5) [2024] FedCFamC1A 188).
8. An order for indemnity costs is a significant departure from the normal standard and requires exceptional circumstances (Harris & Dewell (No 2) [2018] FamCAFC 180), where the Full Court said:
   1. In Kohan and Kohan, the Full Court held, in applying the principles expounded by Sheppard J in Colgate-Palmolive, that an order for indemnity costs represents a "very great departure from the normal standard". In the later decision of the Full Court in Prantage & Prantage, Thackray and Ryan JJ referred to Kohan and other authorities in the Full Courts of both this Court and the Federal Court of Australia as well as the state appeal courts. Their Honours concluded (at [86]) that the "usual rule" continued to apply in respect of awards of costs in this Court notwithstanding the Full Court accepting that the difference between party/party costs and a party's actual costs has continued to grow significantly.
   2. That proposition also derives support from what Callinan J said in Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation. His Honour said that an order for indemnity costs should "be exceedingly rare, as they have a tendency to encourage extravagance and put the quantum of legal fees beyond the effective scrutiny of the courts and their taxing officers".
   3. The rarity of an order for indemnity costs can also be seen illustrated by the comments of Lindgren J in NMFM Property Pty Ltd v Citibank Ltd (No 2), referred to by their Honours in Prantage (at [102] - [103]). Lindgren J said that there is no rule that indemnity costs will be ordered "where the losing party was guilty of ethical or moral delinquency in the antecedent facts which have given rise to the litigation."

1. In Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225, Shepherd J provided some examples of circumstances that might justify an order for indemnity costs. I respectfully refer to, and adopt, the guidance drawn from that decision by Holden CJ in Munday & Bowman (1997) FLC 92-784, at 84,660, where His Honour provided the following examples:

(a) Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts.

(b) Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud.

(c) Evidence of particular misconduct causing loss of time to the court and to other parties.

(d) The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions.

(e) An imprudent refusal of an offer to compromise.

(Citations omitted)

1. That said, the categories of circumstances which enliven the discretion to award indemnity costs are not closed (Yunghanns & Yunghanns [2000] FamCA 681; (2000) FLC 93-029 at [31]).
2. I am not satisfied that this is such an exceptional matter that the interests of justice are served by making a costs order on an indemnity basis. While the mother was ultimately unsuccessful in her application, I do not identify features of this case or her conduct which might otherwise attract opprobrium sufficient to weigh in favour of indemnity costs being ordered. I do not identify conduct of the mother, as a litigant, which would relevantly weigh in favour of an indemnity costs order being made.
3. However, having determined that the mother should pay some of the father's costs, I am minded to make a fixed costs order, to ensure that the parties are not exposed to further uncertainty and continuing dispute in the event it was necessary for them to negotiate an agreed costs amount or to have such determined through an assessment process.
4. Under s 114UB(5) of the Act, the court may order that a party is entitled to costs of a specific amount or assessed on a particular basis (or otherwise as set out in that subsection). If a fixed sum is to be determined, the amount identified must be informed by the evidence available and be "logical, fair and reasonable" (Stoian & Fiening (Costs) [2014] FamCA 944 at [91] citing Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 at [8]; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at [16]).
5. There is no doubt that the mother's financial circumstances are constrained, however, it is well established that impecuniosity is not a bar to a costs order being made (Lenova & Lenova (Costs) [2011] FamCAFC 141). The father works full time as an educator and while his income is superior to that of the mother, he is responsible for the care of the two children.
6. The father also deposes to having expended $96,953.10 on these proceedings (as at 5 September 2025), as set out in his Costs Notice (which became part of Exhibit 4). I take into account that those costs were largely necessitated by the mother's decision to commence this iteration of the proceedings in 2023 and the specific costs in question are sought because of the mother's decision to try to set aside her Notice of Discontinuance. This is not a determination of a costs application of these proceedings more generally, as a consequence of the mother filing her Notice of Discontinuance (see r 10.03 of the Rules regarding costs applications following Notices of Discontinuance).
7. Having commenced these proceedings, the mother's decision to discontinue her applications in July 2025, then to seek to rescind that decision, I have found, is a relevant consideration under s 114UB(3)(c). The mother was wholly unsuccessful (s 114UB(3)(e)).
8. I consider it appropriate that the mother pay something towards the costs that the father has incurred. The father sought, as I deduce, $16,500 for his incurred counsel fees and $5,280 for his solicitor's preparation for and the attendance at the hearing of the Application in a Proceeding about the Notice of Discontinuance. Those amounts include work done by necessity outside of core business hours and with urgency, given the late notice of the mother's application. The fees claimed include costs relating to some preparation by counsel for cross examination of the mother and her intended witnesses, in the event she was successful in setting aside the Notice of Discontinuance.
9. The father has retained solicitors and counsel who charge for the services they provide at rates other than as is set out in Schedule 3 to the Rules ("the scale"). That is entirely usual. Some of the differences are illuminated by reference to a number of key items:

(a) The father's counsel in his fee agreement with the father, charges an hourly rate of $600 (plus GST) and has a daily hearing fee of $6,000 (plus GST).

(b) The scale would suggest an hourly rate for junior counsel of between $344.80 to $491.78 and a daily hearing fee for junior counsel of between $2,437.43 to $3,582.68.

(c) The father's solicitor charges an hourly rate of $550 (plus GST) and the scale suggests an hourly rate for lawyers of $300.31 per hour (including GST).

1. In opposing the costs orders claimed, the mother's counsel submitted that if the court was persuaded to make an order for costs, such should not be on an indemnity basis, and she urged consideration of the scale. I do not accept that the father's costs assessment should be determined by reference to the scale entirely, given each party has engaged solicitors and counsel who charge other than scale. I have regard to the scale however, in the assessment of the reasonableness of the costs claimed on behalf of the father.
2. I am content that I have sufficient evidence as to the financial circumstances of the parties and of the costs incurred by the father, to make a lump sum costs order. Taking all of these matters into account, I am satisfied that the mother should pay the father's costs of and relating to the Application in a Proceeding, dismissed on 8 September 2025, in a fixed amount of $13,000, being an amount of $10,000 for the engagement of counsel (including preparation and attendance on 8 September 2025) and $3,000 for the costs of the father's solicitors.

Costs regarding the application for adjournment

1. The father also sought, as I deduce, a total of $2,608 for his costs of and relating to the mother's application in July 2025 for an adjournment of the final hearing (Earle & Earle (No 2) [2025] FedCFamC1F 483), where his costs had been reserved.
2. Constituting the amount of $2,608, I understand that the father contends as follows:

(a) That the father seeks, in full, the amount of $1,430, being the costs of his solicitor in "dealing with the application"; and

(b) An amount of $1,178 - being an amount according to the scale, "without an advocacy loading" and for a hearing that is "of half a day or less" - for his counsel's attendance on 18 July 2025.

1. The mother's application for the adjournment was unsuccessful, and in those reasons, I again identified deficiencies in the documents completed and relied upon by the mother. She was legally represented when making that application. The mother filed that application in the face of opposition from the father and the ICL. My reasons for judgment make clear that the mother's application was ill-conceived in circumstances where the documents upon which she relied failed to provide any admissible evidence as to the circumstances justifying the requested adjournment.
2. The application was listed for a case management hearing on 18 July 2025, on which day the mother's application was heard and dismissed (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). I shortly thereafter delivered my reasons for judgment. I am satisfied that the father incurred additional fees relating to that process and court event. I am satisfied that the mother was entirely unsuccessful in that application.
3. I am again satisfied that the mother should pay something towards the costs that the father incurred that day (and in preparing documents responsive to the mother's application), as a consequence of her unsuccessful adjournment application. It is appropriate to depart from the usual position under the Act, being that each party pay their own costs, given the deficiencies in the mother's documents relied upon by her at that time in support of her application for an adjournment. The mother was legally represented at that time and at the hearing.
4. I decline to order that the mother pay any of the above costs claimed on an indemnity basis. I refer to, and repeat, the reasons given in paragraph 200 above and confirm that I do not regard the mother's conduct in the proceedings as sufficient to support an indemnity costs order.
5. Upon receiving the mother's Application in a Proceeding, the matter was listed for case management. An affidavit was prepared and filed on behalf of the father, in opposition to the mother's application.
6. I am satisfied, with regard to the financial circumstances of the parties and taking into account the father's responsibility for the care of the children, that a "logical, fair and reasonable" fixed sum in the amount of $2,000 should be paid by the mother towards the father's costs of and relating to the July Application in a Proceeding. This amount reflects the amount sought at scale for counsel's appearance and a modest allowance for the costs incurred by the father's solicitors.

1. The father incurred a cancellation fee from Dr W, which arose when the father advised Dr W, after the mother had filed her Notice of Discontinuance, that Dr W was no longer required for cross examination. The father was remitted his half of the costs of Dr W's attendance fee, less a cancellation fee in the amount of $1,045. The mother then re-instated Dr W's attendance for cross examination at the final hearing.
2. The cancellation fee incurred by the father was directly the product of the father's proper response to the mother taking steps in these proceedings, to discontinue her applications. He was entitled to rely upon that Notice of Discontinuance in accordance with the Rules and to expect that a contested final hearing was unlikely to occur. That cancellation fee incurred was, in effect, thrown away when the mother sought to cross examine Dr W.
3. In those circumstances and considering the matters addressed previously, it is appropriate, and I order, that the mother should pay that amount in full to the father. But for her actions, that fee would not have been incurred by the father.

1. Having determined that the mother should pay the father's costs in the total amount of $16,045 ($13,000, $2,000, and $1,045), I note the submission made on behalf of the mother that in the event a costs order was to be made, that she be allowed some additional time in which to make the payment. The father's counsel did not address me about the time frame for the payment. I determine that the costs to be paid by the mother to the father should be paid within 42 days of these orders.

(1) In proceedings in which an independent children's lawyer for a child has been appointed, the court may make a costs order, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in relation to the proceedings.

(2) However, if:

(a) a party to the proceedings is receiving assistance by way of legal aid in respect of the proceedings; or

(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;

the court must not make a costs order against that party in relation to the costs of the independent children's lawyer.

1. Counsel for the ICL, by way of a Costs Notice filed 5 September 2025 (Exhibit 23) and after making the relevant adjustment in circumstances where one day of final hearing did not proceed, submitted the ICL's costs as being in the amount of $25,679.94. Counsel for the ICL sought orders for the ICL's costs to be paid as follows:

(a) For the attendance on day one of the final hearing, where the mother's Application in a Proceeding was heard, she submitted that the ICL's costs of $2,788.50 should be borne by the mother alone.

(b) For the remaining two days and the current ICL costs including preparation and counsel fees to date, the ICL sought that the parents each pay 50 per cent of those costs.

(c) Such would have the effect of the mother paying $14,233.97 and the father, $11,445.47.

1. The father's counsel did not have instructions to consent to the costs order sought on behalf of the ICL. The mother's counsel submitted that her client was experiencing financial difficulty and that she would be unable to meet any costs order made.
2. The considerations with respect to costs sought on behalf of an ICL are different to the costs considerations more generally under s 114UB of the Act. The discretion to order a party to pay some or all of the costs of the ICL is broad. However, the court must not make an order for a party to pay the costs of the ICL if that party is in receipt of a grant of aid, or if it would cause that party hardship (s 114UC(2)).
3. The work of ICLs is undoubtedly important and beneficial to the parties and to the court. Where parties have the means to do so, it is appropriate that they contribute to meeting the costs of the ICL. In this matter however, while the father is employed and has the means to secure private legal representation, I have regard to his Costs Notice and the observations made previously in these reasons as to the costs incurred by the father in these proceedings.
4. I am satisfied that the making of a costs order may cause the father hardship. He is solely responsible for the financial support of the children, save for a modest monthly child support payment from the mother (which is in arrears). I take into account the demands upon his income deriving from his care of the children.
5. I have ordered that the mother shall be solely responsible for the costs of the supervision of her time with the children. Considering the mother's financial circumstances as discussed previously, and where I have determined that the mother should pay some of the father's costs relating to two applications brought unsuccessfully by her and Dr W's cancellation fee, I accept that being required to meet the costs of the ICL may cause her hardship.
6. On this basis, I am satisfied that making a costs order on behalf of the ICL may cause each of the parents financial hardship. In those circumstances, I decline to make the order sought by the ICL.

I certify that the preceding two hundred and twenty-nine (229) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Simpson.