Federal Circuit and Family Court of Australia
(DIVISION 1)

Earle & Earle [2025] FedCFamC1F 84   
File number:	SYC 4016 of 2023	
		
Judgment of:	SCHONELL J	
		
Date of judgment:	18 February 2025	
		
Catchwords:	FAMILY LAW – RECONSIDERATION OF FINAL PARENTING ORDERS – Where final parenting orders were made in 2021 providing for the parties’ children to live with their father, for him to have sole parental responsibility, and for the children to spend time with their mother on a supervised basis – Where the final parenting orders included an order that the parties have leave to apply for a variation of the orders relating to the mother’s time with the children and the matter of supervision at the expiry of 24 months from the date of the orders by filing and serving an application – Where such order is made without power pursuant to Halloran & Keats [2023] FedCFamC1A and mandatory provisions of s 65DAAA of the Family Law Act 1975 (Cth) – Where the mother filed an application seeking sole parental responsibility, for the children to live with her, and if the Court were to find the father an unacceptable risk, for the children to spend no time with the father – Where the father sought the dismissal of the mother’s application – Where the mother sought at trial through counsel a reconsideration of the final parenting orders pursuant to s 65DAAA – Where the father and the ICL both opposed the relief sought by the mother. 

FAMILY LAW – RECONSIDERATION OF FINAL PARENTING ORDERS – Significant change of circumstance – Where a final parenting order can only be reconsidered if there is a significant change of circumstance and it is in the child’s best interests for the order to be reconsidered – Where the mother submitted as a significant change of circumstance that there has been a substantial effluxion of time since the orders were made, that there has been a change in the medical evidence, and that the mother does not meet the criteria for a diagnosis of schizophrenia or delusional disorder – Where the Court is not satisfied that the mother has established a significant change of circumstances regarding the medical evidence or the mother’s diagnosis – Where the Court is satisfied that the substantial effluxion of time is a significant changed circumstance – Consideration of the best interests of the children – Where the Court limited the orders to be reconsidered to those provided by s 64B(2)(b) of the Act. 

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother filed an application in June 2023 – Where in August 2023 a Judge of Division 2 made orders appointing an ICL and fixing the matter for hearing to commence in November 2023 – Where no such hearing commenced on that date, instead orders were made appointing another single expert to prepare a report and transfer of the matter to Division 1 – Where the Court finds that this is inconsistent with the provisions of s 95 of the Family Law Act 1975 (Cth).  	
		
Legislation:	Family Law Act 1975 (Cth) Pt VII ss 60CC, 60CC(a), 65DAAA, 65DAAA(1)(a), 65DAAA(1)(b), 65DAAA(2), 65DAAA(2)(b), 65DAAA(2)(c), 65DAAA(2)(d), 95	
		
Cases cited:	CDJ v VAJ (No 2) [1998] 197 CLR 182
Earle & Earle (No 3) [2021] FamCA 568
Freeman and Freeman (1986) 11 Fam LR; [1986] FamCA 23
Halloran & Keats [2023] FedCFamC1A 56
Radecki & Radecki [2024] FedCFamC1A 246
Sciacchitano & Zhukov [2024] FedCFamC1A 224
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447	
		
Division:	Division 1 First Instance	
		
Number of paragraphs:	93	
		
Date of hearing:	28 January 2025 	
		
Place:	Heard in Sydney, delivered in Newcastle	
		
Counsel for the Applicant:	Mr Stapleton	
		
Solicitor for the Applicant:	Blanchfield Nicholls	
		
Counsel for the Respondent:	Ms Dart	
		
Solicitor for the Respondent:	Raftons Family Lawyers	
		
Counsel for the Independent Children's Lawyer:	Ms Mason	

ORDERS
	SYC 4016 of 2023	
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)	
BETWEEN:	MS EARLE
Applicant
	
AND:	MR EARLE
Respondent
	
	INDEPENDENT CHILDREN'S LAWYER

order made by:	SCHONELL J	
DATE OF ORDER:	18 FEBRUARY 2025	

THE COURT ORDERS THAT:

1.	The Mother is directed to file within 7 days an Amended Initiating Application seeking orders addressing the mother’s time with the children pursuant to s 64B(2)(b) of the Act.
2.	The Father is directed to file within a further 7 days an Amended Response.
3.	The proceedings are adjourned before the Case Management Judge for further directions on a date to be fixed.

Note:	The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Earle & Earle has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
SCHONELL J:
1	On 5 August 2021, Hannam J delivered reasons in proceedings pursuant to Pt VII of the Family Law Act 1975 (Cth) (‘the Act’) following a hearing that first commenced in November 2020 and concluded in May 2021. Her Honour made final orders that provided for the parties’ children who were then aged five and three years to live with their father, for him to have sole parental responsibility and for the children to spend time with their mother on a supervised basis. 
2	The orders for supervised time specifically provided by way of Order 4 for the mother to spend time with the children for two hours each Wednesday between 3.30 pm and 5.30 pm, three hours each alternate Saturday between 12.00 pm and 3.00 pm, and three hours each Christmas Day and Mother’s Day. 
3	Her Honour made a further order to the following effect:
19.	The father and mother have leave to apply for a variation of Orders 4(a)-(d) and the requirement for supervision of the children’s time with the mother at the conclusion of 24 months from the date of these orders by the filing and serving of an Application in a Case.
4	Such an order is questionable where it is made without power (Halloran & Keats [2023] FedCFamC1A 56). Either way, it is of no legal effect in view of the mandatory provisions of s 65DAAA of the Act which requires the determination of the existence of matters that can only postdate the order. 
5	The mother on 7 June 2023 filed an Initiating Application seeking final orders for sole parental responsibility, the children to live with her and “in the event the Court finds the children are at an unacceptable risk of harm with the father, the children spend no time with the father”. Interlocutory orders to a similar effect were also sought. The father filed a Response to the mother’s application seeking its dismissal.
6	On 7 August 2023, a judge of Division 2 made orders appointing an Independent Children’s Lawyer (“ICL”) and fixed the matter for a ‘Rice & Asplund hearing’ on 1 November 2023. 
7	Despite the terms of that order, no such hearing took place on 1 November 2023. Instead, orders were made by consent appointing another single expert to prepare a report and transferring the matter to Division 1 of the Federal Circuit and Family Court of Australia (‘Division 1’). It is unexplained why, despite fixing the matter for a discrete hearing, no hearing occurred, why it was necessary for a further expert report to be prepared, and why the matter was transferred to Division 1, irrespective of the parties’ consent. Each of these steps is inimical to the prompt disposition of applications of this type consistent with the provisions of s 95 of the Act.
8	The consequences of such an order are that the children have been embroiled in further litigation about their long-term living arrangements, when such issue could have been settled one way or another 15 months earlier.
9	The matter was subsequently listed for hearing on the issue as to whether the Court should reconsider the final parenting order in accordance with the provisions of s 65DAAA of the Act. On the day of the hearing, the matter could not proceed because of the illness of the mother’s counsel. In circumstances where the Full Court was to deliver Reasons in relation to the proper application of s 65DAAA, the parties requested that the matter be adjourned to a date after the delivery of the Full Court’s Reasons. The Full Court’s Reasons in Radecki & Radecki [2024] FedCFamC1A 246 (‘Radecki’) were delivered on 19 December 2024. The first available date thereafter for the hearing to occur was 28 January 2025.
10	The matter was relisted on 23 January 2025 to specifically enquire as to whether any party wished to cross-examine any witness, including the single expert. Each of the counsel briefed advised they did not wish to cross-examine and the matter would proceed based on submissions only.
11	The precise form of the order sought by the mother was clarified by counsel at the hearing to be “that pursuant to s 65DAAA there be a reconsideration of the final orders made 5 August 2021.”
12	The relief sought by the mother was opposed by the father and the Independent Children’s Lawyer (‘ICL’).
DOCUMENTS RELIED UPON 
13	The mother relied on the following documents: 
(1)	Initiating Application filed 6 June 2023;
(2)	Affidavit of mother filed 25 October 2024;
(3)	Affidavit of Dr U filed 25 October 2024;
(4)	Affidavit of Dr V filed 1 November 2024;
(5)	Notice of Child Abuse, Family Violence or Risk filed 29 April 2024; and
(6)	Case Outline filed 22 January 2025.
14	The father relied on the following documents: 
(1)	Response to Initiating Application filed 3 July 2023;
(2)	Affidavit of father filed 1 November 2024;
(3)	Notice of Child Abuse, Family Violence or Risk filed 8 May 2024;
(4)	Single Expert Report of Dr P dated 2 October 2020;
(5)	Single Expert Report of Dr W dated 22 July 2024; and
(6)	Case Outline filed 22 January 2025.
15	The ICL relied on the following documents: 
(1)	Single Expert Report of Dr P dated 2 October 2020;
(2)	Single Expert Report of Dr W dated 22 July 2024; and
(3)	Case Outline filed 15 November 2024. 
16	Dr P was the single expert appointed for the purposes of the hearing before Hannam J. Dr W was the single expert appointed pursuant to the orders made 1 November 2023.
APPLICABLE LAW
17	In circumstances where there exists a final parenting order, the Court is mandated by the terms of s 65DAAA to not reconsider that order unless the court has considered whether there has been a “a significant change of circumstances since the final parenting order was made” (s 65DAAA(1)(a)). 
18	Section 65DAAA provides as follows:
65DAAA  Reconsideration of final parenting orders
(1)	If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)	the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)	the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)	For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)	the reasons for the final parenting order and the material on which it was based;
(b)	whether there is any material available that was not available to the court that made the final parenting order;
(c)	the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)	any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3)	Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4)	The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
19	The Full Court in Radecki recently concluded (consistent with the terms of the provision and extrinsic aids) that s 65DAAA is merely a codification of long-established jurisprudence. Justices Austin and Williams observed:
79	We therefore conclude, for the purposes of s 65DAAA(1) of the Act, and having regard to the principles espoused in Rice and Asplund and subsequent authority,  the proper interpretation of “consider” should not be a literal one. The word “consider” in s 65DAAA should be construed to mean the Court is required to contemplate the evidence and to make findings of fact as to what changes in circumstances (if any) there have been since the making of the anterior parenting orders. If there is no positive finding of changed circumstances, that is the end of the matter. If there is a positive finding as to changed circumstances, the second stage of the process requires the Court to make its determination, subject to the overarching best interests principle, as prescribed by s 65DAAA(1)(b) and otherwise having regard to relevant s 60CC considerations and the matters referred to in s 65DAAA(2). 
20	Of the evidence to be considered, Carew J observed as follows:
128	The use of the term “consider” in s 65DAAA(1) should be understood in the context of the Court being asked to accept the applicant’s evidence taken at its highest but only for the purposes of the application. The suggestion that a court would consider whether there has been a significant change in circumstances without it having any consequence is an interpretation which would give no effect to s 65DAAA(1). Further, it has always been the case that applying the rule in Rice and Asplund is but a manifestation of the best interest principles and s 65DAAA(1)(b) and (2) merely reflect that part of the rule.
21	The stage at which the enquiry takes place is central to the evidence that informs the determination as to whether there has been a significant change of circumstance. If the determination occurs at a preliminary stage that is without the benefit of cross-examination, then the Court is to take the applicant’s evidence at its highest. If no significant change of circumstances is established, then the application must be dismissed. 
22	If the Court is satisfied, accepting the evidence of the applicant that there has been a significant change of circumstance, then the Court must consider, consistent with s 65DAAA(1)(b), all of the evidence, including that of the respondent, informing as it would, all the circumstances as to whether it is in the best interests of the child to reconsider the final parenting order.
23	If done after cross-examination, then clearly the Court must consider all of the evidence adduced for the purposes of determining as to whether there has been a significant change of circumstance.
24	The test is conjunctive. A final parenting can only be reconsidered if there is significant change of circumstances AND it is in the child’s best interests for the order to be reconsidered.
REASONS FOR JUDGEMENT OF HANNAM J
25	Central to the issue of whether there has been a significant change of circumstances since the making of a final parenting order are the Reasons for judgment that gave rise to the order as contained in Earle & Earle (No 3) [2021] FamCA 568 (‘Her Honour’s Reasons’). Her Honour’s Reasons are substantially informed by the evidence of the single expert psychiatrist, Dr P, who prepared two reports, the first released on 15 November 2019 and a supplementary report released on 14 October 2020, and by the evidence of a forensic psychiatrist the mother engaged.
26	Her Honour’s Reasons reveal that one of the primary issues for determination before her was the mental health of the mother and whether it compromised her capacity to care for the children. In that respect, Her Honour records: 
3	The father contends that serious shortcomings in the mother’s capacity to care for the children arising from her mental health difficulties are so significant that it is in the children’s best interests for orders to be made that will see him have sole parental responsibility for them and that they live with him and spend limited supervised time with the mother.  
4	It is the mother’s contention that she poses no unacceptable risk of any kind to the children and she seeks orders that would see the children return to live with her and spend defined time with the father as was the previous arrangement following separation.  
27	Before Her Honour, the mother made a series of allegations that the children were at risk of harm in the father’s care which included:
(a)	the father had physically abused one of the children;
(b)	that police who had investigated the death of the mother’s grandfather a number of years ago were influencing the family law proceedings and the father had been in contact with the police; 
(c)	that there was police corruption including the provision by the police of confidential information to the father and the influencing of the mother’s former solicitors;
(d)	that the police were paying the father’s legal costs; 
(e)	the father was giving the children medication to make them deliberately sick. 
28	In relation to the first report of the single expert, Her Honour’s Reasons reveal the following:
52	So far as the issues related to parenting arrangements are concerned, the expert opined that both children had a secure attachment with each of their parents. She also assessed that it was apparent to her that the son misses his father and would like to spend time with him and that the father appeared to have a more nuanced understanding of the son’s special needs.  She was also of the view that the son is close to his mother and is likely to struggle if any change to his circumstances is too precipitous. Overall, the expert recommended that it would be best for the children if parental responsibility is shared between both parents and both children are supported to work towards living with both of them on a week about arrangement. It was the expert’s opinion at the time that such an arrangement should be facilitated in a gradual manner with the aim that the arrangements reach equal time with each parent 12 to 18 months in the future.  
53	The expert at that time also opined on the basis of her clinical evaluation and collateral information that the mother had a “paranoid stance” in relation to the father’s involvement with police, believing that he is involved in a conspiracy. The expert considered that this stance was a consequence of the mother’s past experiences incorporated into her world-view, which appeared to be shared by the maternal uncle, rather than a delusional disorder or a shared delusional disorder with the maternal uncle.  
29	In relation to the evidence of the single expert in the supplementary report, Her Honour’s Reasons reveal the following:
86	The expert’s supplementary report is also a matter to which I will return in greater detail. For present purposes, it suffices to say that following her second assessment the expert was of the view that the mother’s paranoid beliefs regarding the father and persistent and fixed belief that he and various organisations are involved in a conspiracy against the mother and her family, had evolved into delusions. The expert opined that the mother did not have any insight into her psychotic symptoms or the effect that they were having on her functioning. 
87	The expert 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. 
88	The expert 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.
89	Although the expert also had some concerns about the father’s limited understanding of the son’s needs, which also contributed to the risk faced by that child in particular, the expert’s greater concern was about the mother who in the expert’s opinion “is currently unable to meet the developmental, intellectual and emotional needs of the children”. The expert recommended that interim orders be made that the children live with the father until such time as the mother’s mental illness is treated.
30	In relation to the evidence of the psychiatrist retained by the mother and that of the single expert, Her Honour records the following:
127	The report of the mother’s expert under the heading of Opinion and Recommendations includes the following:
•	It was very clear to the mother’s expert that the mother along with her brother (“the maternal uncle”) has developed very paranoid views in relation to the legal situation including the lawyers and police in two states.
•	The mother’s expert opines that the mother’s beliefs are systematised into a delusional system involving a vast conspiracy and go beyond what would be expected in a paranoid world view.  
•	The mother’s expert is of the view that the sheer number of agencies and people involved show the mother has a pervasive inability to trust and a suspicion that is unshakable and of delusional intensity.
•	In the opinion of the mother’s expert the mother’s delusions of a conspiracy do not fit the “bizarre” category, that is, they are not totally implausible.
•	The mother’s expert did not find convincing evidence that the mother had any other features of schizophrenia and as her delusions are not bizarre, he concludes that a diagnosis of schizophrenia cannot confidently be made.
•	The mother’s expert diagnoses a delusional disorder as more likely than schizophrenia.
•	In the opinion of the mother’s expert the mother’s delusional disorder has developed either in her alone or in concert with her brother (known as a shared psychotic disorder or folie a’deux) and considers that it is more likely she has a shared psychotic disorder.
•	The mother’s expert expresses the opinion that it would be important for the mother to have psychiatric follow up for further assessment of the paranoid beliefs and treatment with anti-psychotic medication and that separation from contact with her brother could also assist if it turns out to be shared a psychotic disorder.
•	While the mother’s expert observes that it should not be assumed that the diagnosis of delusional disorder itself means that she cannot look after her children (and he notes that she was parenting up until recently without concerns being raised with authorities about the welfare of the children), given that the delusions relate to the father, have incorporated the children and have impacted on her help-seeking and engagement with treating professionals, in his opinion there has been an impact on the mother’s parenting.
•	The mother’s expert 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 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.
•	The mother’s expert is of the view that the current significant restriction in the children’s time with the mother is not justifiable on mental health grounds and it also serves to increase the mother’s paranoia about the father and the court process. He opines that the mother’s time with the children could be increased with appropriate supervision with the condition that she does not expose the children to her delusional beliefs.
128	As neither the ICL nor the father sought to cross-examine the mother’s expert, that expert’s evidence was unchallenged. Most of the opinions of the mother’s expert were also not challenged indirectly with the exception of that expert’s opinion concerning the mother’s mental health diagnosis which was explored under cross-examination of the court appointed expert.  Accordingly, in my view some weight must be given to the opinion of the mother’s expert as to matters that were not challenged in any way given the experience and expertise of the mother’s expert set out in his report (Exhibit 10). In this regard, it suffices to say that the mother’s expert holds the relevant tertiary qualifications and currently holds an academic university position […] has been a medical practitioner for [over 20] years, has worked in psychiatry for [over 20] years and has been a forensic psychiatrist for [over 10] years. He has extensive experience in private forensic psychiatry particularly the preparation of court reports and holds other clinical and community positions. He has prepared thousands of forensic reports and appeared in a wide range of jurisdictions as an expert witness. 
…
130	The expert was first cross-examined about the differences between her diagnosis of the mother and that of the mother’s expert.  The expert remained of the view after having considered the views of the mother’s expert that the psychotic illness she had diagnosed in the mother in her supplementary report was most likely schizophrenia.  
131	…The expert confirmed in cross-examination that the differences in opinion concerning the mother’s past mental health difficulties did not make any material difference to her opinion in the proceedings.  
…
133	First, the expert gave evidence to the effect that schizophrenia (as she diagnosed) and a delusional disorder (as the mother’s expert diagnosed) are both psychotic disorders for which there are only subtle differences in treatment. She did confirm however that delusional disorders are “notoriously difficult to treat and very resistant to treatment” whereas schizophrenia is “probably a better prognosis in terms of treatment response”.  
134	Significantly the expert also agreed that the most salient feature of the mother’s schizophrenia as she had formulised it, is the mother’s delusions as well as “her level of disorganisation and the level of functional impairment that the delusional beliefs were causing”.  The expert was of the view that this matter caused her to formulate the mother’s presentation as schizophrenia rather than a delusional disorder.  She said: 
In a delusional disorder the - delusions are systematised and they are – and a person generally does not have such an impairment of functioning.  Whereas when you look cross a longitudinally at [the mother]’s history, she was a pre-morbidly or prior to becoming unwell, she was a highly functional individual who was able to maintain good relationships, attend to her children’s needs, maintain employment and when she became ill there seems to have been a significant deterioration in her functioning in a number of different arenas which the collateral information makes clear.  So examples of this would be the deterioration in her relationship – in her marital relationship, and the sudden exit from that relationship.  It would also be her ability to engage in what, I think, she would pre-morbidly have been able to do.  And you see evidence in the way that this picture evolved in that, for example, she was seeking medical attention and assessment for [the son] and then by the time she had become more unwell, she had included in her delusional beliefs some paranoia about whether the medical team at the children’s assessment service had been influenced by the father or by the police.  So what you see is a – is a marked deterioration in different arenas.  There’s also some other collateral information from the police that she was giggling and was – that there were – she was incongruent in the way that she presented.  And that’s also a symptom of – more in line with a schizophrenia diagnosis.
135	The expert was then asked to disregard the last mentioned collateral evidence from police about her behaviour on that particular occasion given the possible unreliability of that information. The expert confirmed that her opinion remains the same without that piece of information “because of the pervasiveness and the consequences and the functional impairment”. She also added that the mother had a further symptom, (albeit not a specific diagnostic criteria), being anosognosia, the medical term for lack of insight.  So far as this last symptom is concerned, the expert explained that “it’s very predictive of poor prognosis in terms of obtaining treatment”.
136	The expert confirmed that both she and the mother’s expert agreed that the mother’s beliefs are systematised into a delusional system involving a vast conspiracy.
137	Another reason why the differences in specific diagnosis between the expert and the mother’s expert 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. 
138	The expert 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.  
…
144	The expert confirmed that she did not form the opinion expressed in her two reports only on the documentation in which these views were expressed but on the statements made by the mother when assessed and her presentation overall. The expert attached particular weight to the mother’s level of agitation and avoidance of particular topics over her lengthy assessment of about three and a half hours in total and the mother’s general demeanour which indicated to the expert the mother’s level of hyper arousal and the distress that these topics 
…
148	Returning to the issue of orders that will best meet the children’s needs in the event that the mother does not seek treatment, the expert reiterated that given the children’s secure attachment with their mother this should continue but supervision of their time with her will be necessary until adolescence. 
149	The expert also said that as the children mature they will likely have a lot more activities and responsibilities so that a single more lengthy period of time with their mother rather than the two short periods each week would be appropriate but this would depend upon “knowledge or understanding of whether the mother has had treatment or not” which would envisage some form of review of the arrangements in about 24 months after the orders are made. 
…
153	… A number of critical opinions of the expert are consistent with the opinion of the mother’s expert which was not challenged and any matters of difference were explained by the expert in oral evidence.  The expert remained firm as to her opinions and was able to justify them under cross-examination.  In these circumstances, I accept the opinion and recommendations of the expert and attach significant weight to them.  
31	In addressing the relevant matters under s 60CC, Her Honour’s findings were:
175	… In final submissions the mother specifically disavowed any allegations about harm that may be occasioned to the children in the father’s care. 
…
184	… The expert maintained that even if the mother does not comply with treatment as recommended for her mental health difficulties it is in the children’s best interest for them to have ongoing and quite regular contact with the mother in the future.  There was at no stage any proposal under consideration for the children to have no or very limited contact with the mother even if she did not comply with treatment.  
…
201	As was indicated by the expert, the current arrangements for the children’s time with the mother will need to be reviewed in around 24 months.  This will be the case whether the mother seeks treatment as recommended or declines to do so.
202	In the event that the mother gains sufficient insight to seek treatment, this two year period gives her an appropriate opportunity to demonstrate that it has been effective to mitigate the potential risks she poses to an acceptable level.  If treatment is effective so that the risks she poses to the children are mitigated then any application that supervision be lifted is likely to be successful and any application to increase that time may also be considered.  
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 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.  
…
209	The expert identified a number of risks to the children when in the mother’s care unless she is assertively treated for this condition.  First, the expert identifies that there is potentially a risk of exposure to the mother’s unpredictable behaviour due to her paranoid delusional beliefs about the father and her persecutory interpretation of life experiences. The impact upon the mother of her beliefs and interpretation of life experience had by the time the second assessment was undertaken also already placed the son in particular at risk as these matters formed the basis of the mother’s refusal to engage with an assessment by the CDS of that child.  This refusal as explained by the specialist paediatrician to both the expert and in his report admitted in the proceedings, meant that this child had not accessed appropriate supports given his age which has already made his prognosis much poorer.
…
213	The expert was not challenged on her opinion and she remained firm under cross-examination that the mother was at the date of her supplementary report (June 2020) unable to meet the developmental, intellectual and emotional needs of the children. The expert was particularly concerned about the mother’s refusal to have the son assessed by the CDS team and about the mother’s inability to provide a plausible rationale for removing the children from child care and withholding the children from the father on occasions in the past, and the mother’s claims about the father’s conduct, particularly that he was deliberately feeding them laxatives.
214	When the parents were assessed for the purposes of the supplementary report, the expert 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.  
215	The expert gave the example of the mother not attending or presenting the son to the assessment with the CDS team as she was concerned that the father had provided information to the team that would undermine her position in the Family Court and had withdrawn the son from day care for reasons that appeared to be related to her delusional belief that the provider was in contact with the father who she believes was conspiring with police to undermine her family name and implicate her [family member] in the [death] of the maternal grandfather. The expert also referred to the mother’s belief that the father was deliberately causing harm to the children and had taken them to hospital to obtain evidence of this. The expert went on to opine that future potential risks might include the mother removing the children from school if she were to incorporate the school or teachers into her paranoid delusional system which would place the children at risk of not meeting their learning and developmental milestones and of poor life outcomes in the future.
216	The expert was also concerned about a further possibility that if the mother remains psychotic, as the children get older she may share her delusional beliefs about the father with them which may potentially result in asking them to be vigilant or aware that their father is trying to harm them which would be detrimental to their emotional wellbeing.  
217	The expert opines that each of the foregoing risks are likely to remain present for so long as the mother’s delusional beliefs arising from her psychotic illness are untreated. For this reason, I consider that the proposal of the mother which provides for the children to live with her and makes no reference to her need to receive treatment is fraught with potential risk for the children.
218	In summary, the expert recommends in her supplementary report that the children move to live with the father and that such an arrangement should continue until the mother’s mental illness is treated.  It is also the expert’s recommendation that any time the children are to spend with the mother continues to be supervised and that a psychiatric assessment be completed to assess the mother’s capacity to parent the children prior to making any orders restoring them to the mother’s care.
219	The mother was also assessed in December 2020, six months after the expert’s second assessment by the mother’s (adversarial) expert. Although there are some differences in opinion between the expert and the mother’s expert, such as in relation to the exact diagnosis of the mother’s condition, the opinion of the mother’s expert as to the mother’s parenting capacity was consistent with the expert’s opinion.
220	The mother’s expert also opined that the mother was suffering from a psychotic disorder which he diagnosed as a delusional disorder.  He opined that as “the delusions relate to [the father], have incorporated the children and have impacted on her help-seeking and engagement with treating professionals”, there has been an impact on the mother’s parenting.  Although the mother’s expert does not explore the mother’s level of incapacity to the same degree as the expert, it can be inferred from his report as a whole that without treatment the children’s time with the mother must remain supervised. It is clear however that he felt that the current limitations were not justifiable on mental health grounds and could be increased “with appropriate supervision, with the condition that she does not expose the children to delusional beliefs”. (emphasis added)
32	In relation to the question of the mother’s ongoing time with the children, Her Honour observed that supervision is artificial and brings with it limitations. That said, Her Honour observed as follows:
224	In these proceedings, both the expert and the mother’s expert 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.  
225	The expert was equally clear in her oral evidence that it was not possible for her to predict how long the mother would be required to engage in treatment or that treatment would necessarily be effective to mitigate the risks posed by the mother arising from her mental health difficulties or that the mother would have sufficient insight to engage in appropriate treatment at all.  The tenor of the expert’s evidence was, however, that as the mother had functioned well as a parent prior to becoming unwell, had a close attachment relationship with the children and authentic concern for them and a desire to be a significant part of their lives, these matters may be sufficiently motivating for the mother to seek out appropriate treatment and engage in it until she received an appropriate level of benefit from it.  
226	Although the mother’s submissions in relation to the evidence generally at the end of the proceedings were somewhat difficult to follow, I understand that she did maintain the position that she does not have delusions in relation to a conspiracy between the father and police which has disadvantaged her in the proceedings including causing a large number of lawyers she has engaged to act other than in her interests. The mother specifically disavowed holding the beliefs expressed by the maternal uncle in voluminous correspondence in which he engaged and insisted that even the emails that were said to have been authored by herself were in fact written by her brother.
33	In addressing the order that would be least likely to lead to an institution of proceedings, Her Honour found as follows:
234	The necessity for the children's time with the mother to be supervised has already been explored in these Reasons. The supervision proposed by the father and ICL is consistent with the recommendations of the expert who expressed the view that such time should be supervised for so long as the mother remains untreated or treatment is shown to be ineffective. Although the expert said it is difficult to predict, the supervision should remain in place in these circumstances until early adolescence but the pattern of that time is likely to require variation given the changing needs of the children as they mature. In other words, the orders for the mother’s time will require reconsideration whether the mother engages in treatment or not.
235	Further, the authorities are clear as to a court's obligations in considering an order for indefinite ongoing supervision of time between a child and parent. The Full Court in Gorman & Huffman and Anor [2016] FamCAFC 174 said at [296] - [297]:
It appears that the guideline stems from a premise founded in the “undesirability of, and the practical difficulties associated with, long term supervision in a children's contact centre” and the impact each and both might have on the welfare of the children concerned (Boland J in Moose, cited with apparent approval in Slater v Light and referring to “Guideline for Family Law Courts and Children's Contact Services, January 2007 … published by the Attorney-General's Department, the Family Court of Australia and the Federal Magistrates Court of Australia).
The guideline would appear to contain four components. First, while a failure to limit supervision is not itself an error, the failure to consider a limitation upon it may constitute an error in the exercise in discretion. Second is the necessity to give “cogent” reasons. Thirdly, and in practical effect alternatively, is the apparent necessity for the orders to “allow for some review of the situation in the future”. Fourthly is the need to give reasons reflective of the consideration of those issues.
236	The order proposed by the father for a mechanism for the Court to reconsider the orders relating to the children’s time with the mother provides such an opportunity to both parties. In my view, if orders are otherwise made as sought by the father then it is necessary to give both parties the capacity to seek a variation of the orders with respect to the children’s time with the mother as this will be necessary whether the mother engages in treatment or not. For this reason, I do not consider that it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children as such revisiting is necessary in the circumstances of this case.
34	Under the heading of, ‘Conclusion’, Her Honour determined that the children’s best interests were served by an order that the father have sole parental responsibility and that the children live with him. She found that the parties have no capacity for joint decision-making and that there is a high degree of mistrust between the parents.
WHAT THE MOTHER CONTENDS TO BE THE SIGNIFICANT CHANGED CIRCUMSTANCES 
35	I have read all of the evidence relied upon in the proceedings, including the Exhibits, but do not propose to repeat all of it in these Reasons. As the High Court reminds in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447:
62. 	… A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue.  Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case. 
36	In the mother’s affidavit, commencing at paragraph 21, she outlines her contentions as to the significant change in circumstances that have arisen since the making of final orders. The asserted changed circumstances include as follows:
(1)	That her two treating psychiatrists Dr V and subsequently Dr U each opine that the mother does not suffer from a mental illness, nor does she meet the criteria for a diagnosis of schizophrenia or delusional disorder;
(2)	That the children, and in particular Y, behave in a sexually suggestive and explicit way during FaceTime calls with the mother and during supervised visits. The children’s behaviour according to the mother includes in the case of Y: 
(a)	simulating masturbation, fellatio, sexual intercourse and dancing in a sexualised way; 
(b)	“appearing to simulate sexual intercourse on his sister” (affidavit of the mother filed 25 October 2024 paragraph 21.4.9); 
(c)	simulating sexual intercourse upon his mother (affidavit of the mother filed 25 October 2024 paragraph 21.4.10); 
(d)	using sexually explicit language (affidavit of the mother filed 25 October 2024 paragraph 21.4.13, 21.4.14); 
(e)	both children using crude language, 
(f)	X complaining of “itchy genitalia” (affidavit of the mother filed 25 October 2024 paragraph 21.4.15); and 
(g)	X exposing her chest and spreading her legs in a FaceTime conversation (affidavit of the mother filed 25 October 2024 paragraph 21.4.16).
(3)	That the father denigrates the mother to the children including that the children tell her that she is not their mother, that the father has said to them that their mother does not love them, and that the father has said to them that they will live with him forever;
(4)	That the children have reported to the mother that they want to live with her;
(5)	That Y has wet and soiled himself on a number of occasions; and
(6)	That the father has restricted the mother’s access to information and not complied with orders.
DISCUSSION 
37	The mother’s counsel urged that the matters referred to in the mother’s affidavit and elaborated upon in submissions constitute a significant changed circumstance. Her counsel identified what he described as the significant matters giving rise to a significant changed circumstance to be:
(a)	That there has been a substantial effluxion of time since the orders were made and that the children are older; 
(b)	There has been a change in the medical evidence; and
(c)	The mother does not meet the criteria for a diagnosis of schizophrenia or delusional disorder.
38	Both the father and the ICL submitted that no significant change of circumstance had occurred and that it was inconsistent with the best interests of the child for there to be a reconsideration of the orders. 
39	For the reasons set out below, I am not satisfied either individually or collectively that the mother has established a significant change of circumstances for the reasons she advances in her evidence or based on the matters referred to at 37(b) and (c) above. 
40	I am however satisfied for the reasons set out below, that the effluxion of time since the final order was made establishes a significant changed circumstance in so far as it relates to the time the children spend with the mother.
41	Addressing the matters raised by the mother, the clear findings of Hannam J were that at the date of the final orders, the expert evidence was that the mother suffered a delusional disorder or schizophrenia. Irrespective of diagnosis, both experts agreed that the mother’s delusional thought patterns impacted her capacity to care for the children and posed a risk of harm to them.
42	The evidence of the mother’s treating psychiatrists postdates the final orders. Dr U is her most recent treating physician. She is a consultant psychiatrist. There is no challenge to her qualifications or experience. She says in her report: 
•	I understand that there is a report from each visit from the organisation supervising the visits ([Z Contact Service]). [Ms Earle] always attends and says that seeing her children is her priority. She has raised a number of concerns about her children. [Y] has been diagnosed with autism and she has concerns about his reading level and whether he is getting sufficient support, for example speech therapy. She has also raised issues concerning sexualised behaviours with both children. She has shown me some videos of these behaviours. [Ms Earle] has reported these concerns to a number of agencies. She is also concerned that [Y] has issues with soiling himself. She says she has concerns that the children may be exposed to inappropriate material/ unsupervised with electronic devices etc.
I do not feel that these views are of delusional intensity. Of note there is poor communication between [Mr and Ms Earle] about the children, particularly when concerns are raised. 
…
•	The first time I reviewed [Ms Earle] ([in] September 2024), she expressed views that she was concerned that the children were being psychologically harmed by [Mr Earle]. She reported that her daughter had been upset that [Mr Earle] had told her that she would never live with Mummy again. She expressed concern that [Mr Earle] had taken the children to stay in hotels and not told her where they were which was a breach of court orders. She reported concerns that [Mr Earle] was linked to corruption allegations through [his connection to political figures]. She also reported [Mr Earle] was linked to a company called [AA Company] which was connected to a property developer who had fled Australia. She expressed concern that [Mr Earle] may take the children overseas. The connections are confirmed by Google. [Ms Earle] did not have any systematised delusional beliefs regarding these connections saying ‘she had no idea about how they connected to [Mr Earle] but she had just seen it on the internet’. 
…
•	In [Dr Q’s] report dated 1st January 2021, he describes concerns that she has systematised persecutory delusional beliefs about her husband, the police and other services. [Ms Earle] consistently denied this, and I could find no evidence of persecutory systematised delusional beliefs. She does assert that she lost custody because her husband repeatedly submitted affidavits relating to the death of her father rather than concentrating on the parenting and property matters. She believes that the affidavits submitted at the time referred to her father’s death. There is no extension of belief beyond this regarding a conspiracy regarding the Victorian Police force and [Mr Earle] at the current time. I understand that she did not have legal representation at the previous hearings. She does not believe that these things are still happening. She believes that some of her previous statements may have been misunderstood because of her level of education (she left school in Year 9). She does not currently have any delusional beliefs regarding her husband's family. 
I do not have access to any court documents to confirm this, I understand that she has been represented by her current lawyer for the past few years and that [Ms Earle] has had no concerns about them. In my view these beliefs likely represent paranoid overvalued ideas (not delusional beliefs). It is likely that she has cultural beliefs/ paranoid stance regarding the police/ law enforcement that may relate to some of the traumatic experiences she has experienced (particularly the [death] of her father […]). These beliefs may have been exacerbated by the stress of the court proceedings.
It is interesting that [Dr P] noted in her report that [Ms Earle's] brother shared some of the persecutory beliefs. [Dr P] considered that there may be a shared delusions disorder, ‘a folie a deux.’ Given the length of time since [Dr P's] assessment and report, I feel this is unlikely that there is a shared delusional disorder. In situations of possible/ acute psychotic beliefs, the common clinical picture is that the clinical features of the disorder become more evident over time. If [Ms Earle] did have a psychotic illness, the expectation would be that it would evolve/ progress over time and become more apparent, particularly as she has not taken any antipsychotic medication. The reports referenced in [Dr P's] reports occurred some years ago there is no evidence of these symptoms progressing into more clearly identifiable psychotic symptoms. 
…
Mental state examination:
[Ms Earle] has attended all of her appointments. She is always on time and arrears neatly dressed in business clothes as she goes to work after the appointment. She is cooperative and forms a good rapport and maintains eye contact. She has described her mood as okay, and not depressed but at times has been sad and upset, generally with regard to the visits with her children being cancelled. There have been occasions when she has appeared mildly agitated discussing her concerns about her children. 
Her speech is generally spontaneous with normal rate, rhythm and tome. Her speech can be a little rapid when discussing concerns about her children/ and issues around the visits and her concerns. 
Her thought content is generally logical with no evidence of thought disorder or disorganised thought processes. There was no evidence of systematised delusional beliefs.
As above, she does have a persistent belief that her father's death was repeatedly referenced in the court previous court proceedings. This is likely an overvalued idea.
She had not had any thoughts of harm to herself or others. There are no perceptual disturbances (such as hallucinations). She has had reasonable insight.
…
Adjustment disorder.
1.	Whether, during the period [Ms Earle] has been a patient of yours, she has displayed symptoms that fit the criteria for diagnosis of:
2.	Schizophrenia; and/or 
3.	Delusional disorder 
There is no current evidence that [Ms Earle] meets the criteria for schizophrenia or delusional disorder. In particular:
…
1 have not seen evidence of disorganized speech or thought disorder. [Ms Earle's] speech has been rapid at times if she is agitated or upset, predominately around distress al not seeing her children. There are no abnormalities of thought form that would suggest a diagnosis of schizophrenia. 
…
[Ms Earle's] functioning does not seem to have declined. She has returned to work, has friends though her church and has a supportive relationship with her brother.
…
If [Ms Earle] did have a serious psychotic disorder, it would be expected that this would have evolved over the past 3 years and there would be evidence of more systematised delusional beliefs and other evidence of psychotic illness such as delusions, hallucinations, thought disorder and decline in functioning. Particularly as she has not taken antipsychotic medication. There is no evidence that this is the case. It is possible she may have experienced brief stress related psychotic symptoms around the time of the court proceedings/ or the symptoms are more likely related to an overvalued idea regarding law enforcement. 
…
As above, I do not think there is sufficient evidence to support a diagnosis of schizophrenia or delusional disorder at this time. I do not think [Ms Earle's] mental health affects her capacity to parent her children.
…
As above, in my view [Ms Earle] does not currently fulfil the criteria for either schizophrenia or delusional disorder or another mental health issues such as major depressive disorder. She does not have issues with substance use and does not fulfil criteria for a personality disorder. I do not feel that she poses a risk to the children due to any mental health issues. 
(As per original)
43	Dr V is also a consultant psychiatrist. He is the mother’s former treating psychiatrist. The mother changed her treating psychiatrist following some criticism of Dr V in the report of Dr W. There is no challenge to his qualifications or experience. He has seen the mother between September 2022 and 4 September 2024 on 55 occasions. He says: 
Her current mental health shows Adjustment Disorder with Anxiety (F 43.22, DSM-5 TR, 2022) related to her separation from her children.
…
[Ms Earle] during the multiple reviews I had with her since 19 September 2022 till my last review on 4 September 2024, she has displayed no symptoms that fit the criteria for diagnosis of Schizophrenia and/or Delusional Disorder.
4.	Psychiatric assessment of [Ms Earle] as at September 2024, including any presenting symptoms and [Ms Earle’s] state of mental health, including whether [Ms Earle] suffers from any psychiatric condition or illness.
[Ms Earle] over the last 2 years showed anxiety about her separation from her two children.
Her current mental health shows Adjustment Disorder with Anxiety (F 43.22, DSM-5 TR, 2022) related to her separation from her children.
5.	If [Ms Earle] suffered from any psychiatric condition/s or illness/es as at September 2024, whether they affect her capacity to parent the children?
By September 2024 [Ms Earle] has Adjustment Disorder with Anxiety related to separation from her anxiety. A condition which will normalise by having her children under her warm maternal care.
6.	Whether, as a result of any mental health issue/s or illness (if any), [Ms Earle] poses a risk to the children?
[Ms Earle] poses no risk to her children. Her mental state and the reaction of her children towards her showed strong attachment and bonding between them, which is currently affected by her separation from them.
7.	[Ms Earle’s] compliance with treatment as prescribed by you from September 2022 to September 2024 including medication (if any medication has been prescribed by you).
[Ms Earle] had regular reviews over two years, and no medication prescribed. Only melatonin 2 mg was prescribed and used at times to help her sleep.
(As per original)
44	The mother’s psychiatrists first commenced treating her in September 2022, some 12 months after delivery of judgment. The psychiatrists have not prescribed the mother anti-psychotic medication. She has however engaged in extensive psychiatric therapy for over two years. An acceptance of the mother’s expert evidence at its highest reveals that the mother does not meet the criteria for schizophrenia or a delusional disorder and that her mental health does not affect her capacity to parent her children. 
45	However, none of this constitutes a significantly changed circumstance. It was anticipated that the mother would be motivated to engage in therapy. In that respect, Her Honour accepted the evidence of the experts as follows:
225	The tenor of the expert’s evidence was, however, that as the mother had functioned well as a parent prior to becoming unwell, had a close attachment relationship with the children and authentic concern for them and a desire to be a significant part of their lives, these matters may be sufficiently motivating for the mother to seek out appropriate treatment and engage in it until she received an appropriate level of benefit from it.
46	It was also anticipated that if the mother did engage in therapy there would be an improvement in her mental health and the risks posed would be mitigated. In that respect, Her Honour found: 
127	The mother’s expert 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.
47	Her Honour further found that:
202	In the event that the mother gains sufficient insight to seek treatment, this two year period gives her an appropriate opportunity to demonstrate that it has been effective to mitigate the potential risks she poses to an acceptable level.  If treatment is effective so that the risks she poses to the children are mitigated then any application that supervision be lifted is likely to be successful and any application to increase that time may also be considered.
48	Each of these events have happened. I am not satisfied an improvement in the mother’s mental health is a significant changed circumstance as it was anticipated that it would improve if she engaged in therapy and that she would not thereafter pose a risk of harm to her children.
49	Nor does the mother’s contention that the father poses a risk of harm to both children amount to a significant changed circumstance. In the mother’s affidavit, she recounts numerous instances of what she describes as sexualized behaviour observed by her and on occasions others (assuming that to be an accurate description of what has been observed). The mother’s assertions have been the subject of complaint and report by her to New South Wales Police and the Department of Communities and Justice. In that respect, the mother, in hyperbolic language, contends by reference to Y:
88.	I assert he is regularly psychologically and sexually abused in [Mr Earle’s] household and as such he is wetting and soiling himself and acts very scared and nervous.
50	The mother’s assertion that the children are at a risk of harm in the father’s care is not a new or recent allegation. In the hearing before Hannam J, the mother made allegations that the father was physically abusing Y and providing the children with medication to make them deliberately unwell. Her Honour’s Reasons reveal:
175	Similarly, although the tenor of the mother’s evidence at various points throughout the proceedings was that the son in particular had been physically abused by paternal family members and the father in the past (and as I understand it she contended there remained a risk that this would occur in the future) this was not ultimately pursued at the trial and the mother did not seek a finding in this regard. In final submissions the mother specifically disavowed any allegations about harm that may be occasioned to the children in the father’s care.  
51	The mother’s assertions of the children being at risk in the father’s care is thus not a changed circumstance, let alone a significant one. Whilst the specifics of the allegation have changed, the assertion that the children are at risk of harm in the father’s care is simply the maintenance of a long-held belief.
52	Nor am I satisfied that the remaining matters the mother relies upon constitute a significant changed circumstance. Children say all sorts of things to their parents from the innocuous to the more serious. Statements by young children that the other parent has allegedly said something disparaging about the other parent do not, by any reasonable measure, constitute a significant changed circumstance. Nor does a child wetting or soiling themselves or a child saying they want to live with the other parent constitute a significant changed circumstance. These are things that occur in the lives of all children, particularly where their parents are separated, and the children are caught between conflicting parents. A continuation of conflict, assertions of disparagement or allegations that a party has not complied with the strict dictates of an order, do not constitute in every instance, not the least the circumstances of these parties and their chronic discord, a significant changed circumstance. 
53	I am however satisfied that the effluxion of time since the making of the orders is such as to give rise to a significant changed circumstance in so far as it relates to the children’s time with their mother. At the time the orders were made, the children were aged five years and three years. The most proximate expert observations of the children relative to the judgment was that recorded in the evidence of the single expert in the supplementary report dated 2 October 2020, nearly 12 months prior to judgement.
54	Three and half years has elapsed since the orders were made. Her Honour’s Reasons referred to the expert evidence and contemplated that there should be a reconsideration of the children’s time with their mother in the future. As Aldridge J observed in Sciacchitano & Zhukov [2024] FedCFamC1A 224:
14	The passage of four years for a three year old child, in the context of the orders, will go a long way to establish a change in circumstances, even assuming everything else stays the same, which is unlikely…
55	The fact that the mother’s application seeks to broaden the scope of the enquiry does not inhibit the Court from restricting the extent of any reconsideration. As much is clear by the terms of s 65DAAA(2)(c) which specifically provides that a reconsideration could see a varying “in whole or in part or in some other way”.
56	I am satisfied that by virtue of the effluxion of time and based on the expert evidence before Her Honour encapsulated in the Reasons advanced by Her Honour at [201], [202], [225], and [234] – [236], there should be a reconsideration of the orders providing for the time the children spend with the mother and the issue of supervision.
57	Assuming however either individually or collectively the matters relied upon by the mother did constitute a significant changed circumstance, such a change is insufficient of itself. The applicant must also establish that it is in the children’s best interests for there to be a reconsideration of the parenting orders. 
58	In that respect, the Court may have regard to the matters in s 60CC and any other matter the Court considers relevant, including the non-exhaustive list of matters set out in s 65DAAA(2). This involves a consideration of all of the circumstances, including the evidence of the father and that of Dr W.
59	Dr W conducted a series of interviews with the parties, initially in March 2024, then in May 2024, and finally in July 2024. His report lists the documents that he read. Dr W asked the mother about a series of allegations in her affidavit, including one that the father had a cranial tube. In his report, Dr W records:
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 aforementioned tube.
60	In relation to allegations of alleged sexual behaviour, Dr W records as follows:
In relation to her concerns the police are not investigating the alleged sexualized behaviour, [Ms Earle] was asked what she believed the police should be doing in terms of investigating. She did not reply specifically to what the police should be doing, but asserted that the children have never displayed sexualized behaviour with her. She made allusion to [Y], as soon as he sees the father at the end of supervised visits, “tensing up” and has only started displaying such behaviour “since legals began”. She referred to her concerns that the father is coaching the children to behave badly towards the mother during FaceTime contacts and believed that such behaviour began almost immediately after financial settlement was reached between the parents. […]. She advised that specifically on this date [Y] “did the Rubik's Cube thing”.
Asked whether she was concerned the father was teaching the children such behaviour in retaliation for the mother receiving whatever settlement she did, [Ms Earle] confirmed this to be the case. She said that the father had encouraged the children to “behave sexually towards me” and made reference, again, to the father allegedly defying court orders but did not specify.
61	During the course of his interviews with the father, Dr W records:
[Mr Earle] denied that he has a tube under his scalp, as alleged by the mother, and has denied ever attending upon a neurologist or similar medical professional for any type of neurological examination.
62	Dr W also interviewed the mother’s treating psychiatrist. He records as follows:
Telephone interview – [Dr V], Psychiatrist. 15 March 2024
[Dr V] confirmed the mother's overview of treatment, and also confirmed that he has not diagnosed the mother with any form of psychotic illness, referring to her as “very balanced” in appointments. He referred to the primary issue/trauma for the mother as separation from the children, and specifically advised that he disagreed with a previous diagnosis of schizophrenia due to the mother’s “amazing memory”, which one does not typically observe in schizophrenic patients.
…
When asked his thoughts on the comments the mother has made about the father having a tube under his scalp, and it impacting his behaviour, particularly in relation to family law proceedings, [Dr V] advised that although he had no material regarding the father’s health, he believed that it could be to do with a shunt having been inserted due to [a medical condition], which can impact behaviour. [Dr V] advised that the mother has spoken on many occasions of the father making her life harder by not allowing her to have increased time with the children and withholding money.
63	In the follow-up interview with the mother in May 2024, Dr W again returned to the incident involving the alleged tube in the father’s head. He records as follows:
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 fathers July 2023 Affidavit). She believed the tube was influencing his behaviour as it is “always difficult to get a response from him”.
64	In relation to the state of either party’s mental health, Dr W opined 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. 
…
[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 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.
[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 [death]. 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.
…
[Dr V] further echoed [Ms Earle’s] belief that [Mr Earle’s] allege 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. 
…
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 [Drs P and 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. 
65	Under the heading, ‘The need to protect the child from physical or psychological harm’, Dr W opined as follows:
[Ms Earle] paranoid delusions regarding the father (and accordingly the police, and other professionals) represent an unacceptable risk to the children's well-being were she to have any unsupervised time with the children in the absence of above-recommended psychiatric treatment.
A substantial risk exists that the mother would convey her paranoid views to the children in an unsupervised setting. 
…
In considering the children's relatively young ages, and [Y’s] developmental and cognitive vulnerabilities, any unsupervised time for the mother with the children in the absence of targeted treatment for her delusional disorder presents an unacceptable risk to their development. It is highly likely that the mother would imbue the children with her beliefs about the father, which would unsettle them psychologically, and derail progress they have made. This would distort their own sense of self, and ultimately of reality, to the degree that they would be at risk from significant mental health issues when older. Were one to consider the likely confluence of the maternal [family members’] beliefs about and attitudes towards the father, the risk manifoldly increases. 
66	Under the heading, ‘The nature of the child’s relationship with each of the child’s parents’, Dr W recorded:
Of additional note here is that [Ms Earle], as opined in the previous psychiatric reports, was the children’s primary carer when younger. It is known from Attachment theory that infants/young children are highly sensitive to non-verbal and verbal communications from the primary parent.
Consequently, both [Y] and [X] would have, at one stage, enjoyed experiences of close interaction and responsiveness from the mother, as well as being aware of what elicited such responses from her. However, for several years now, their time with [Ms Earle] has been limited and her mental health has been compromised. 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 [family members], 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. 
67	Under the heading, ‘The likely effect of any change in the child’s circumstances’, Dr W opined:
In keeping with [Ms Earle’s] proposals, the children would move a considerable distance from where they live now and spend supervised time only with the father. This would be a significant change for the children, and unless the Court were to find the father presents an unacceptable risk to the children, such a change would not be in the children's interests. As noted, [Mr Earle] is the primary carer, and the children expect him to meet their needs. Any such a change would leave the children confused, and anxious, and the anticipated loss of contact with the extended paternal side of the family would be a considerable loss for the children (keeping in mind [Ms Earle] view of the paternal grandfather and paternal uncle, in particular). 
68	Under the heading, ‘The capacity of each of the child’s parents to provide for their needs’, he recorded:
While [Ms Earle] appears devoted to the children, she does not recognize or acknowledge the seriousness of her psychotic illness. As such, there can be little if any confidence that she can consistently, reliably, and appropriately meet the children's needs. Her paranoid and persecutory state of mind concerning the father, statutory services, and even the school, suggests that her judgement and decision-making capacity would be largely based on her perceptual distortions, and not driven by the children's needs. I understood from [Ms Earle] that she does not speak negatively about the father to the children. I also understand this is a condition of supervision agencies when overseeing contacts, so she is unlikely to do so in that setting. At the same time, [Ms Earle] had very little, if anything, positive to say about the father in SER interviews. She was forceful when she so spoke, and if not re-directed, showed a capacity to talk at length about her many grievances. Given [Ms Earle] lives with [Mr B] and [Mr C], contact with whom the Court has prohibited for the children, her ability to safeguard the children from her views of the father, coupled with [Mr C’s] and [Mr B’s] views of [Mr Earle], raises serious concerns in light of the Orders she seeks. 
[Mr Earle] has sworn 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.
Of concern is the sexualized behaviour that [Y] and [X] have been exhibiting as per the mother’s allegations – such behaviour was noted to be of concern by [Ms BB] and NSW Police. [Ms Earle] asserts in her material that [Y] is “regularly psycholligally and sexually abused” in the father’s household (Affidavit 18/10/2023, para. 20). Of note is that [Ms Earle] maintains that the children do not show sexualised behaviour in her care. Her affidavit material (e.g. 18/10/2023 para. 22) appears to contradict this. 
…
A difficult issue to determine is whether [Y] has been exposed to sexualized behaviour in some way in the father’s care but given the outcome of investigations by the relevant agencies, one can assume that there is no significant concern for the children in this regard. The mother’s allegations have been investigated by the police and the DCJ, and it is understood no further action has been taken by either agency. Neither [Y] nor [X] is exhibiting disruptive, withdrawn or aggressive behaviour at school nor in [Mr Earle’s] care – such behaviours are those one would expect to see across a variety of settings when a child is being regularly psychologically and sexually abused. 
69	Under the heading, ‘Which order would be least likely to lead to the institution of further proceedings’, he opined:
Unless the Court were to find that there has been a significant, sustained change in the mother's mental health status, it is my opinion that the final orders from August 2021 remain most appropriate. Any continuation on the mother's behalf to seek review of these orders, in the absence of commitment to treatment for psychotic illness, would likely lead to the children being subject to ongoing investigations by statutory bodies, which in turn would be caused by the mother's mental illness. Such continuing investigation would prove deleterious to the children's well-being. At the same time, were the mother to engage in targeted psychiatric treatment to address her psychotic illness, namely antipsychotic medication and psychotherapy for psychosis, re‑assessment of any risk to the children would be required, with a possible pursuant change to arrangements for the children's time with [Ms Earle] as they get older. 
70	In addressing the matters specifically identified in s 65DAAA(2) I have referred to the Reasons for the prior parenting orders. In particular, I note Her Honour addressed at length the mother’s mental health issues and its impact upon the children which provided the substantial basis for the orders that were made. Whilst the mother’s treating experts opine otherwise, the evidence of the single expert Dr W as referred to above is essentially that there has been no change in the mother’s mental health, and she continues to pose a risk of harm to the children. Whilst a substantial part of the Reasons was based upon the mother’s mental health, the determination in relation to the children’s living arrangements was not solely based upon that. In relation to the nature of the children’s relationship with each of the parents, Her Honour observed that the children’s relationships with each parent was important. She further observed that both parents had a positive attitude towards the children and had demonstrated patterns of behaviour that allowed them to have undertaken their parenting responsibilities at [187]. She observed that both parents had wanted to be involved in decision making but lacked a capacity to be able to make joint decision making at [188]. 
71	The expert medical evidence at the time of the making of the orders was broadly in agreement as to the effect of the mother’s mental health on her parenting capacity and the risk she posed to the children. The evidence of the mother’s experts does not constitute material available at the time the final parenting order was made as it postdates the orders (s 65DAAA(2)(b)). While it is evidence that is now available and was not before Her Honour, it does not undermine the correctness of the findings by Hannam J but is supportive as contemplated by Her Honour of a reconsideration of the supervised time regime. 
72	It is impossible to opine, given the conflicting expert opinions and where the parties elected not to test it, which expert evidence would be accepted at a final hearing or that its acceptance would lead to a significant change in the orders (s 65DAAA(2)(c)) in the expansive terms sought by the mother. It does not automatically follow that an acceptance of the opinions of the mother’s treating psychiatrists means there would be a change in the orders for parental responsibility or primary care. Such a reductive approach ignores entirely the disruption and instability that changes in residence occasion to children. 
73	There is no presumption or preference that children should live in the primary care of one parent over that of another or if circumstances change there should be a reversion back to a preexisting pattern of care. These children have already gone through one significant change from their mother’s primary care to that of the father’s. In respect of a further change back to the mother, Her Honour observed as follows:
196	The mother’s proposal envisages that orders be made for the children to live with her and that they spend time with their father on a gradually increasing basis. While it is proposed that the children’s time would graduate to substantial and significant time with their father including during the school holidays, this is not contemplated to occur until 2023. In other words, the mother’s proposed orders, if made, would bring about a significant reduction in the children’s time with the father. Having regard to the children’s established relationships with the father as also documented by the expert, and their experience of him as their primary caregiver for almost a year, such a significant reduction in their time with him would, in my view, be detrimental to them at this stage.  
74	These observations resonate with those of Dr W who concluded:
In keeping with [Ms Earle’s] proposals, the children would move a considerable distance from where they live now and spend supervised time only with the father. This would be a significant change for the children, and unless the Court were to find the father presents an unacceptable risk to the children, such a change would not be in the children's interests. As noted, [Mr Earle] is the primary carer, and the children expect him to meet their needs. Any such a change would leave the children confused, and anxious, and the anticipated loss of contact with the extended paternal side of the family would be a considerable loss for the children (keeping in mind [Ms Earle’s] view of the paternal grandfather and paternal uncle, in particular).
75	The parties remain mired in conflict and distrust. I am not satisfied a change or variation of the orders in relation to parental responsibility or primary care is likely to change how they treat each other. It is a position that existed during the period following the parties’ separation and final orders and has continued subsequently. It would be a naïve hope that reconsideration of the orders would remove the level of conflict and disputation between these parents. Orders for sole parental responsibility and for the children to live with the father have not ameliorated in any way the conflict between the parties. There is nothing that would lead the Court to conclude that a reconsideration of that order as contemplated by the mother might change the dynamic. 
76	A reconsideration of the parental responsibility order, the live with order and the issue of risk posed by the father would be attended by significant disruption to the children’s routine and stability consequent upon the ongoing conflict and stress occasioned by family law litigation. 
77	In that respect, these children have been involved in significant disputation for much of their short lives. Their parents separated in 2018 when the children were a toddler and the other still an infant. The mother left the home and they did not see their father for some weeks and thereafter on a supervised basis. Between the date of separation and orders made in October 2020, Hannam J found that the children’s relationship with the father was disrupted in January and February 2019 at [31], March 2019 at [34], July 2019 at [46], and on subsequent occasions at [50] with further difficulties in November and December 2019 at [55] and [61]. 
78	When the father withheld the children from the mother in March 2020 at [68], the father’s time was suspended for a short period in April 2020 as described at [69]. In October 2020, orders were made placing the children in the father’s care at [91]–[93] which orders were subsequently confirmed at the final hearing. 
79	Further litigation between these parties in the terms of that sought by the mother as referred to above would inevitably lead to further disruption in the lives of these children, including by necessity, further interviews with single experts and potentially the ICL. Involvement, even indirectly, of children in litigation, particularly about their future living arrangements, is inimical to their welfare and the antithesis of that which promotes their welfare. Litigation involving children is damaging and destructive. It is thus to be avoided unless the circumstances demand it is necessary, as being in their best interests. That is the consistent theme of the authorities. As Nygh J in McEnearney and McEnearney (1980) FLC 90-866 at 75,499 observed:
The reconsiderations of the questions of custody of a child carry with it enormous psychological harm.
80	Further, Strauss J in Freeman and Freeman (1986) 11 Fam LR observed:
Stability in the lives of children and also in the lives of adults is an essential prerequisite to their wellbeing.
81	Finally, the High Court in CDJ v VAJ (No 2) [1998] 197 CLR 182 observed:
118.	The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
82	The mother’s counsel submits that Her Honour contemplated a broader ranging enquiry and that same was supported by the evidence before Her Honour by reference to [195] and [218] of Her Honour’s Reasons. A proper reading of those paragraphs does not support such a conclusion. At [195] Her Honour merely refers to the expert’s evidence as at October 2020 that provided the basis for the change of the children’s primary carer at that time while [218] is no more than a repeat of what Her Honour recorded at [195].  
83	To invite a reconsideration of the parenting arrangements in the terms sought by the mother is to invite uncertainty and instability into the lives of the children in circumstances where it would appear on the evidence that their lives are settled, compared to that which existed prior to the change to the father’s care. For these reasons, I am not satisfied that a reconsideration of the orders for parental responsibility and primary care would be in the children’s best interests. 
84	I am however satisfied that a more limited enquiry into the issue of whether the mother’s time should be increased and whether supervision should be removed is in the children’s best interests notwithstanding the submissions of the ICL and the father’s counsel and conscious that it would involve a continuation of the litigation.
85	On balance, whilst such a reconsideration would amount to a continuation of the litigation, it’s breadth and focus would be narrower and less intrusive. Inevitably, it is a balance between the potential benefits and detriments to the children. I have referred to the detriments above. However, the limited time the children have with their mother is restrictive and does not permit them to develop a depth to their relationship with the mother. The evidence before Her Honour and her Reasons clearly raised as an issue a reconsideration of the children’s time with their mother.  In that respect, I note that Dr W does not say that there should not be an increase in the children’s supervised time with the mother. On balance, weighing the competing tensions I am satisfied that a reconsideration of the final orders governing the mother’s time with the children would constitute a potential benefit to the children (s 65DAAA(2)(d)) and be in their best interests.
86	Whilst the Court must act cautiously in assessing questions of risk of harm, it cannot ignore the evidence that the mother’s belief that the children have been physically and sexually abused in the father’s home have not been substantiated by investigations conducted by the New South Wales Police and the Department of Communities and Justice. The mother’s leap from belief to confirmation is not supported by the available evidence and is contradicted by the evidence of the single expert who records as follows:
Of concern is the sexualised behaviour that [Y] and [X] have been exhibiting as per the mother’s allegations – such behaviour was noted to be of concern by [Ms BB] and New South Wales Police. [Ms Earle] asserts in her material that [Y] is “regularly psychologically and sexually abused” in the father’s household (mother’s affidavit filed 18 October 2023, paragraph 20). Of note is that [Ms Earle] maintains the children do not show sexualised behaviour in her care. Her affidavit material (e.g. 18/10/2023 para. 22) appears to contradict this. 
…
A difficult issue to determine is whether [Y] has been exposed to sexualised behaviour in some way in the father’s care but given the outcome investigations by the relevant agencies, one can assume that there is no significant concern for the children in this regard. The mother’s allegations have been investigated by the police and DCJ, and it is understood no further action has been taken by either agency. Neither [Y] nor [X] is exhibiting disruptive, withdrawn or aggressive behaviour at school nor in [Mr Earle’s] care – such behaviours are those that one would expect to see across a variety of settings when a child is being regularly psychologically and sexually abused. 
87	The mother elected not to challenge, through cross-examination, this conclusion.
88	In relation to the mother’s allegations, the father in his affidavit says as follows:
110.	The appointment ultimately proceeded with [Ms BB] on 4 October 2023. [Ms BB] spoke with [Y] separately, and following the interview, [Ms BB] had a meeting with [Ms Earle] and myself. During that parenting meeting, [Ms BB] stated words to the effect of “I don't have any concerns about [Y] and the children in [Mr Earle's] household” and “any in appropriate behaviour that [Y] displayed he learnt from a boy at school called “[…]” or other students”. [Ms Earle] became quite aggressive at this point and insisted “you have to make a mandatory report". [Ms BB] said “as the allegations are sexual in nature I agree and I will do that, but I will make it clear in the report that I don't have concerns about [Mr Earle’s] household”. 
…
121.	The NSW Police spoke with the children at their school in [late] 2023 and also spoke to me and teachers at [CC School]. I understand that I was the last person to be interviewed, and I was not informed that the police had spoken with the children until after those interviews had occurred. 
122.	The police concluded that the children were not at risk in my care and issued and email to me on 21 December 2023 closing the matter and their investigation.
123.	The investigations of the Department of Communities and Justice occurred later than the investigation of the NSW Police Force. Staff from the Department of Communities and Justice did not speak with the children until around May 2024, around 2 months following the children meeting with the single expert [Dr W] in March 2024.
124.	Again, as was the case with the NSW Police Force, I did not become aware that the children had met with the staff from the Department of Communities and Justice until they had already been interviewed at school. I am aware that the staff from the Department of Communities and Justice spoke with the children, [CC School], [Y’s] psychologist [Ms BB] (with that conversation happening at my request) with [Ms Earle], with [Ms Earle’s] brother [Mr C], with [Z Contact Service], with NSW Police, and with myself. 
125.	Officers from the Department of Communities and Justice visited my home on 2 occasions, being [in mid] 2024 to interview me, and [the following month in] 2024 to observe the children at home. [Later that month] I received a letter from the Department of Communities and Justice stating “DCJ became involved as we received a risk of significant harm (ROSH) Report for your children with concerns for sexual abuse; sexual act or exploitation. Throughout our assessment, we did not substantiate these concerns[....] through our conversations with you and your family, we have determined that no further intervention is required for your family.” 
(Reference to annexures omitted)
89	The mother has not sought by affidavit in reply to dispute the accuracy of the father’s evidence or cross-examine him or challenge by contrary evidence the result of the investigations or what Ms BB said. Weighing the mother’s belief against the evidence of the investigations by the New South Wales Police Force and that of Ms BB, taken with the mother’s choice not to challenge or test the assertions is such that on balance I am not satisfied that she has established, taking all of the evidence into account, that the children’s best interest are served by an investigation of or litigation in relation to these issues before this Court.
90	Neither party focused in any detailed way on the s 60CC considerations. Having regard to the matters under s 60CC, there was no direct submission put to me in the terms of s 60CC(a). I have addressed above the mother’s belief that the children are at some risk of harm in the father’s care and the weight of the evidence that is not supportive of her belief.  I do not regard the age of the children to be such that their views would necessarily be determinative. Nor am I in a position to assess with accuracy the basis of the children’s views.
91	I recognise the developmental, psychological, emotional and cultural needs of each of the children and that Y has clearly significant psychological needs. There is no suggestion those needs are not being adequately met by his father. The mother’s belief is an insufficient basis to conclude otherwise.
92	On balance, having regard to all of the matters referred to above, the evidence of both parties, the mother’s experts and the opinions of the single expert, I am not satisfied that it is in the best interests of these children for a reconsideration of the orders for parental responsibility and primary care with the father. 
93	I am however satisfied for the reasons given earlier that there has been a significant change of circumstances and that it is in the children’s best interests for there to be a reconsideration of the time the children spend with the mother as contemplated by s 64(B)(2)(b) of the Act. To give effect to these Reasons, directions will be made for the filing of an Amended Initiating Application and Amended Response and for the matter to be listed before the Case Management Judge on a date to be fixed.

I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.	

Associate:

Dated:	18 February 2025