FADEN & FADEN

[2011] FamCA 894

FAMILY COURT OF AUSTRALIA

FADEN & FADEN [2011] FamCA 894

FAMILY LAW – CHILDREN – application for summary dismissal or strike out of an application for further parenting orders – application of Rice & Asplund principle – change in circumstance – best interests of the children

Family Law Act 1975(Cth)

Rice and Asplund (1979) FLC 90-725
Reid & Lynch 2010 FLC 93-448
SPS & PLS (2008) FLC 93-363
Marsden v Winch  [2009] FamCAFC

APPLICANT: Ms Faden

RESPONDENT: Mr Faden

FILE NUMBER: SYC 8240 of 2007

DATE DELIVERED: 11 November 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 30 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

SOLICITOR FOR THE APPLICANT: Barkus Doolan Kelly

COUNSEL FOR THE RESPONDENT: Mr Blackah

SOLICITOR FOR THE RESPONDENT: Caroline Chung & Associates

Orders

1. The wife’s application in a case filed on 11 July 2011 seeking the summary dismissal/strike out of the husband’s application for further parenting orders is dismissed.

2. The matter is to be relisted, at a time suitable to the court and the parties, to consider further directions which should be made including the appointment of an Independent Children's Lawyer and also the obtaining of an experts report.

   IT IS NOTED that publication of this judgment under the pseudonym Faden & Faden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: SYC 8240 of 2007

Ms Faden

Applicant

And

Mr Faden

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an Application in a Case filed by the wife on 11 July 2011. By that application she seeks a summary dismissal of paragraphs 1 to 13 of the orders sought in the husband’s Amended Initiating Application filed on 8 April 2011. In his opening address, the wife’s counsel pointed out that this application was strictly speaking not a summary dismissal but an application pursuant to the authority of Rice and Asplund (1979) FLC 90-725 to have the Court refuse to allow the husband to proceed with a further Application for Final Orders in respect of the children in such close proximity to the last final orders made on 6 January 2010.The husband opposes the application of the wife.

2. On 8 April 2011 the husband filed an Amended Initiating Application. Paragraphs 1 to 13 of the orders sought are proposed final parenting orders.

Wife’s Affidavit Evidence

1. The wife supports her application with an Affidavit sworn on 28 June 2011 and filed on 11 July 2011.

2. In her affidavit, the wife points out that the orders now sought by the husband would seek to disturb an order for equal shared parental responsibility and replace it with sole parental responsibility reposing in the husband. The husband proposes a change in the arrangements for the principal care of the children so that the children live with him the majority of the time.

3. In her affidavit the wife sets out the circumstances of the parties and the children since the orders were made on 6 January 2010. She also refers to matters contained in family reports prepared in 2009.

4. A particular issue between the husband and wife is the medical condition of the children. She outlines the medical services which have been sought for the children whilst they have been in her care.

5. The wife in her affidavit also details the difficulty she experiences in communicating with the husband. There are also educational issues relating to the children which are set out.

6. The wife referred the Court to the “Children and Parents Issues Assessment,” dated 2 May 2008, prepared by Ms B, family consultant. There was a further “Child Dispute Conference Memorandum” produced by Ms B on 22 May 2009. A Family Report dated 28 September 2009 and a “Memorandum of Child Dispute Conference” dated 26 May 2011 were prepared by Ms C, family consultant.

7. The wife advised the Court that she would be directing the Court’s attention to various other documents which had been filed by the parties prior to this time.

Husband’s Affidavit Evidence

1. The husband relies on his Affidavit sworn on 2 August 2011, filed 3 August 2011. In the husband’s affidavit he explains why he entered into the consent orders on 6 January 2010. He asserts that the orders have not worked for the benefit of the children. In particular the husband is concerned that behaviour, which he attributes to the wife, in relation to the health of the children, has not subsided.

2. The husband says that about three weeks before filing the amended application in April 2011 he spoke individually with each of the children. He said to them “If you are serious about wanting to spend equal time with me, I will apply for it so that you can go to Court and tell them what you want. This will be your last chance, I can’t keep doing this. I am worried about how your mother will react if I do it.” The husband asserts that each of the children expressed clear wishes that they would like to live with him.

3. The husband says that since seeing the child inclusive memorandum dated 30 May 2011 and seeing the expressed wishes of the children he will respect their wish to spend equal time with each of the parents and will pursue that order.

4. Amongst other things, the husband claims that the children have told him they are left on their own by the mother for periods of up to two hours. The husband has reported that matter to the Department of Family and Community Services. In a somewhat dramatic statement, the husband says the children claim that on one occasion the child, D, almost drowned and had to be rescued by another child when the wife was away from the property and her partner was reading a newspaper inside the house and not supervising the children in the pool.

Child Inclusive Memorandum dated 30 May 2011

1. In the child inclusive conference memorandum dated 30 May 2011 the wife acknowledged that E and F probably would want to spend more time with their father than they currently do. She claimed to be open to the children spending time with their father, in addition to the current orders.

2. Ms C reports E, then aged 11, expressed an opinion that he would like to spend more time with his father and suggested a week about basis between his parents. E rejected as a proposal that he spend more time with one parent than with the other.

3. F, then aged 10, confidently told Ms C that he wished to spend more time with his father. He said he would like to spend equal time on a week about basis. He did not mind if he spent more time with his father than his mother.

4. When G, then aged 7, was seen he was able to identify that he spends more time with his mother than his father but could not provide information about the schedule. He did, however, tell the family consultant, when pressed, that his stated preference would be one week with each parent.

5. Ms C interviewed D, then aged 5 who did not express any particular view about the current arrangements.

Wife’s Submissions

1. The wife addressed the Court in relation to the applicable law. The Court was referred to the decision of Reid & Lynch 2010 FLC 93-448. The judgment of Finn J as it appears in paragraph 21 at page 85, 074 was brought to the Court’s attention:

   19.      As O’Ryan J explains in his reasons for judgment, the grounds of appeal pursued before us on behalf of the Mother can be divided into the following two broad categories: first, what is described as “Rice & Asplund matters and Res Judicata” together with an issue about the adequacy of reasons; and secondly, procedural fairness issues.

   20. In relation to the first of those categories, and again as O’Ryan J explains, s 65D(2) of the Family Law Act 1975 (Cth) (“the Act”) empowers a court to make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order, but in exercising such a power the best interests of the child in question are the paramount consideration (as was recognised by Neville FM in paragraph 33 of his reasons).

   21.      However, as O’Ryan J also explains by reference to the various authorities which he cites, a court should not lightly entertain an application to discharge, vary, suspend or revive a final parenting judgment, unless the court can be satisfied that there is some changed circumstance which would justify such a serious step, or some fact which was not previously disclosed which would have been material in the making of the orders.

   22.      I would also in this context refer to the observations of McHugh, Gummow and Callinan JJ in CDJ v VAJ (1998) 197 CLR 172 at 118 (albeit made in the context of the admission of further evidence on appeals in parenting cases) that 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.

2. The Court was also referred to the decision of O’Ryan J in the same authority at paragraph 234 to 238:

   234. Although res judicata does not apply to a final parenting judgment, and there are no statutory conditions which must be satisfied before a court exercises the power in s 65D(2) of the Act, there are sound reasons why there should be some restraint on the exercise of the power. For example, in Freeman and Freeman (1987) FLC 91-857 Strauss J said at 76,470-71:

   Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely.  It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family.  It is financially burdensome.  For these and like reasons the court may, in an appropriate case, scrutinise with some care an application such as the one in question here when a party applies for what is, in effect, the reversal of an order made a short time previously.  The court may enquire what the facts and circumstances are before it embarks on what might be a lengthy and costly hearing:  The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration.  But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support.  Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being.  Another important reason for approaching with some care an application to overturn such a recent order is that the proper and orderly administration of the law in the community of which these children are part requires that orders made in this jurisdiction should be not overturned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing the custodial arrangements brought about by the order.  Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children. (citations omitted)

   All of the matters that Strauss J discussed are within the rubric of the best interests of a child.

   235. Prior to 1976, in proceedings under the repealed Matrimonial Causes Act 1959 (Cth), there was authority that to discharge, vary, suspend or revive a final parenting judgment, there had to be the “most substantial grounds” and “[a] reversal of [a] decree would require the discharge of a particularly heavy onus”: McManus v McManus [1969] 13 FLR 449 at 455 per New South Wales Court of Appeal. However, since 1976 a less stringent requirement has been adopted.

   236.    In Rice and Asplund the leading judgment was given by Evatt CJ, with whom Pawley SJ and Fogarty J expressed their agreement.  Having discussed certain authorities, including McManus, Evatt CJ said at 78,905-6:

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based.  It should not lightly entertain an application to reverse an earlier custody order.  To do so would be to invite endless litigation for change is an ever present factor in human affairs.  Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material … These are not necessarily matters for preliminary submission, but they are matters that the judge should consider in his reasons for decision.  It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served.  These principles apply whether the original order is made by consent or after a contested hearing.  The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.

   Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way.  The court must apply the principles of sec 64 and weigh up the factors for and against the proposals for each party, having regard to the welfare of the child as the paramount consideration.  One of these factors is the length of time the child has been in a particular situation.  Another is any earlier decision of the court, and the reason for that decision.  The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors.  While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court's assessment of the parties or views as to the best interests of the child.  These are matters which cannot be determined by any fixed or absolute standard.(citations omitted)

   237.    The principles espoused in Rice and Asplund have been considered and applied in numerous first instance and Full Court decisions including since amendments to the Act were introduced by the Family Law Reform Act 1995 (Cth) and the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth): see Marsden v Winch. 

   238.    In summary, a court should not lightly entertain an application to discharge, vary, suspend or revive a final parenting judgment.  In dealing with such an application, the court must be satisfied that there is some changed circumstance which will justify such a serious step or some new factor arising or some factor which was not disclosed at the previous hearing which would have been material: see also Langham and Langham at 76,179.

3. The wife submitted that the authorities referred to were sufficient to cause the court, in this case, to dismiss the husband’s further application for final parenting orders.

4. I raised with the wife’s counsel why I should not make an order requiring the parties to meet with a family consultant for the purposes of discussing what changes they may be able to agree to in relation to the time the children spend between them, given the concession of the wife, as referred to in the Child Inclusive Memorandum dated 30 May 2011, where she recognised that at least two of the children do want to spend more extensive time with their father. Counsel for the wife submitted that the Court could make an order for the parties to attend upon counselling with the family consultant. It was submitted that the Court could in those circumstances dismiss the husband’s application and that such a process would address the Court’s concern that no discussion had taken place between the parties since 30 May 2011, in relation to the time the children spend with their father.

Husband’s Submissions

1. The husband’s counsel submitted that it was very unlikely anything productive would come from an order, suggested by the wife’s counsel, that the parties attend upon the family consultant to discuss the question of the children spending additional time with their father.

2. The husband’s counsel pointed out that there have been significant changes to the circumstances for the children since consent orders were made on 6 January 2010. Those changes included the husband entering into a relationship with a new partner, the wife’s partner moving into the same residence as the children and the husband obtaining a new residential address for he and the children. He also pointed to the husband’s evidence that the wife has not desisted in her apparent anxiety as to the children’s health and need to be seen by medical practitioners.

3. The husband tendered a page of the notes taken by Ms C at the time of preparing the child inclusive conference memorandum, in particular the words “Dad says just say whatever you want.” The husband’s counsel submits that, contrary to the assertions of the wife, this does not indicate that the children feel that they are under pressure from their father to state that they wish to live with him for any time greater than that being experienced by them under the current orders.

4. The husband’s counsel was critical of the wife for acknowledging the wishes and desires of E and F to spend more time with their father and having done nothing to implement that.

5. The husband submits that to dismiss his application for final orders, as suggested by the wife, amounts in itself to being a parenting order. Consequently, he says the Court needs to, as a mandatory operation, consider the matters and make findings in relation to the matters set out in section 60CC of the Family Law Act 1975(Cth) (“the Act”).

6. The Court was referred to the decision of SPS & PLS (2008) FLC 93-363, at page 309, paragraph 45. In that decision Warnick J set out the rule as stated in Rice & Asplund. In particular the following words were relied upon by the husband as falling from His Honour:

   … at whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the best interests principle.

7. Paragraphs 45 to 49 of Warnick J’s decision in  SPS & PLS is as follows:

   45.      Discussion of the rule has not always used consistent terminology.  In particular the term “threshold” has sometimes been used in a temporal sense, to indicate something done at the beginning of a hearing as opposed to at the end and, at other times, the term has been applied to consideration of the rule (irrespective of when in a trial that was given) ahead of consideration of (or as the initial application of) other relevant or potentially relevant principles.

   46.I will use the term “threshold” to mean, “the first question to be determined” and which, depending on the answer to it, may be dispositive of an application for parenting orders, irrespective of when in a hearing it is posited and answered.  I will refer to the situation arising when the question is posed and answered at the outset of a hearing as treatment of the question as a “preliminary matter”.

   47.The rule is long established - nearly thirty years now in this jurisdiction – and was alive well before that in similar jurisdictions, and so, one might think, is in little need of discussion.  But sometimes familiarity and repetitive usage may abrade the subtleties of a principle or expose those not originally appreciated.

   48.In my view, reflection on the rule shows that:

   i)        What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.

   ii)       In its original formulation, the rule is directed to application as a preliminary matter.  Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing.  The consequences of that determination have received little attention.

   iii)      At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.

   iv)       Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.

   v )       The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.

   vi)       “Shorthand” statements of the rule may contribute to its misapplication.

   vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.

1. The husband’s points out that the children’s now expressed views, to spend week about living between their parents, is a very substantial change in circumstance since the orders were made on 6 January 2010.

2. The husband submits that it would be premature to strike out his application at this time. He relies on the authorities referred to in his case outline where they address the question of when the court should consider the so called “threshold” created by the decision in Rice & Asplund. The husband submits that there should be a family report and that should be considered as part of the material the Court would take into account in determining the wife’s application now before the Court.

The Law

1. In deciding whether to allow the re-litigation of final parenting orders, I turn now to the principle set out in Rice & Asplund (1979) FLC 90-725. The principle provides that where final parenting orders have been made, in an application to re-litigate:

   … the court would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material

2. This principle has been approved and cited widely since this elucidation in 1979, and has also been refined. The resulting position on the principle, currently held by the Court, has been concisely set out by Warnick J in SPS v PLS (and approved in Marsden v Winch (2009) 42 Fam LR 1), which sets out the application of the case following the 2006 amendments to Part VII of the Act. In Marsden, this position was set out as follows:

   [46]     Warnick J had earlier said at [48]:

In my view, reflection on the rule shows that:

(i)       What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.

(ii)      In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.

At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.

Discussion in terms of that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful. Particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.

The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order

“Shorthand” statements of the rule may contribute to its misapplication.

Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or not to be made in that regard.

[47] We agree with those observations. Warnick J went on to consider each of these observations, recognising (at [74]) that once a court refrains from applying the rule as a preliminary matter and embarks upon a hearing the rule should not necessarily be cast aside although its force might be diminished. Importantly, Warnick J made the point that the implication should be avoided that if the rule is applied as a preliminary matter the parenting application is not dealt with on the merits. In particular, he noted that the “paramountcy principle” still applies to the decision to dismiss an application to vary (s 60CA of the Family Law Act 1975 (Cth); see also Newling & Mole (1987) FLC 91-856; F & N (1987) FLC 91-813; McEnearny (supra)).  We agree with the conclusion reached by Warnick J (at [81]) that:

…when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing.  Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.

[48]     In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.

[49]     However, even that simple formulation must be subservient to the nature of the application itself.  This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests.  It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children.  In addition, recent research demonstrates that conflict between parties is itself harmful to children.[1]  

[50]     Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made.  Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case.  How is that decision to be made?  The court must look at:

1.        The past circumstances, including the reasons for the decision and the evidence upon which it was based.

2.        Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.

3.        If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself.  Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation. 

[1] See for example Jennifer McIntosh ‘Enduring conflict in parental separation: Pathways of impact on child development’ (2003) 9 Journal of Family Studies 63 and Jennifer McIntosh and Richard Chisholm ‘Cautionary notes on the shared care of children in conflicted parental separation’ (2008) 14 Journal of Family Studies 37.

1. In SPS v PLS, the Court held the application of the Rice & Asplund rule is a manifestation of the best interests of the child principle, in that it is not in the interests of a child to have repeated litigation. The underlying conclusion ought to be that “the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue”.

2. Since the principle is a manifestation of the “best interests rule”, the application of Rice & Asplund must recognise the new legislative provisions, in relation to the best interests of a child, as the context for the rule. The presumption that equal shared parental responsibility is in the best interests of the child must therefore be taken into account when making any orders in relation to parenting. Warnick J also set out the Rice& Asplund principles in relation to the Act:

[87] While it is clear that of themselves the legislative changes introduced by the 2006 Act do not constitute a change of circumstances for the purpose of the Rice & Asplund rule, a change in relevant facts may take on a significance because of the legislative amendments that it would not have possessed before them.

1. The Full Court in Marsden also held that, in determining whether to allow an applicant to re-litigate a parenting case, the Court should not be limited to deciding between the two choices of determining the matter on the material before it or allowing the matter to proceed to a full hearing. Their honours stated:

   [55]     Given that the application of the rule should always remain a manifestation of the best interests principle, we do not think that that principle can be given its full weight by restricting the application of the rule in Rice & Asplund to two choices, either application of the rule by taking the applicant’s case at its highest, or a full hearing.

   [56]     In our view, depending upon the facts of each case, a broader range of processes should always be considered.  This is because the decision is one which must be made in the best interests of the child but may also be because of the need to provide procedural fairness in the manner in which the court determines how the rule will be applied. 

Conclusion

1. In this matter there are a number of facts that stand out as requiring consideration. They are as follows:

   a)The orders made on 6 January 2010 were orders made by consent in the absence of a hearing of the issues relating to parenting orders;

   b)There is continuing litigation between the parties in respect of their property matters. Thus dismissing the husband’s application would not relieve the children of being exposed to ongoing conflict between their parents arising out of continuing litigation in this Court; and

   c)The wife is aware of the wishes and/or needs of the older children to spend additional time with the husband. Thus far there is no evidence that she has acted on that need she recognises. There is, in my view, given the age of the eldest child, potential for child/parent conflict should the wife continue to ignore the clear need and/or wish of that child or those children to spend more time with the husband. At this early stage it is impossible to assess the extent to which the motivations of the children to spend more time with their father arise from agitation on his part with them as opposed to a genuine need in themselves.

2. I accept there are significant changes which have occurred for these children since 6 January 2010. Of particular note are the following:

   a)The wife’s partner, Mr J has taken up residence with the wife and children in the former matrimonial home;

   b)The husband has moved his residence;

   c)The husband has entered into a new relationship and his partner is residing with him; and

   d)There are continuing issues between the parties in relation to the health and educational needs of the children. The husband raises as a real concern the possibility that the children may be exposed to abuse in the hands of the wife arising from over exposure to medical and quasi-medical professionals, such over-exposure arising from inappropriate concern on the wife’s part as to the well being of the children.

3. In my view it is too early to determine that it is appropriate to apply the decision and mechanism set out in Rice & Asplund to dismiss the husband’s application. The Court may ultimately take the action urged by the wife. However, in my view, further information needs to be before the Court before it makes such a serious determination.

4. Further information needs to be provided to the Court. This may be in the form of a family report or in some other manner. I propose to raise this with the parties and to that end will order a relisting of the matter. The order of the Court will be that the wife’s application in a case filed on 11 July 2011 seeking the summary dismissal/strike out of the husband’s application for further parenting orders is dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate:

Date:  11 November 2011