Fitzroy and Fitzroy (No 2)

[2010] FamCA 434

FAMILY COURT OF AUSTRALIA

FITZROY & FITZROY (NO.  2) [2010] FamCA 434

FAMILY LAW – CHILDREN – Relocation – Mother relocated from the Sunshine Coast to central Queensland coast after the final hearing concluded, and orders were made, last year –  Discussion of the “rule in Rice & Asplund”

Family Law Act 1975 (Cth) s 62G
Family Law Rules 2004 Div 12A

AIF v AMS (1999) 24 FamLR 756
U v U (2002) 29 FamLR 74
Rice & Asplund [1979] FLC 90-725
Miller v Harrington (2008) FamCAFC 150
SPS & PLS (2008) FLC 93-363).

APPLICANT: Mr Fitzroy

RESPONDENT: Ms Fitzroy

FILE NUMBER: BRC 5947 of 2008

DATE DELIVERED: 19 May 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 19 May 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr W. Rosen of Rosen Lawyers

SOLICITOR FOR THE RESPONDENT: Ms T. McMillan of Journey Family Lawyers

Orders

IT IS ORDERED THAT

1. The mother file and serve within 28 days:

   (a)an affidavit annexing a report from the psychologist and the psychiatrist who she has consulted in respect of her WorkCover claim;

   (b)an affidavit from any psychologist, therapist, or other health professional who has been consulted by her in respect of her psychiatric or emotional health.

   AND IT IS FURTHER ORDERED THAT the Family Law Rules, to the extent that they prevent the filing of those affidavits, be suspended.

2. The mother shall file and serve, within 14 days, an application setting out the parenting orders that she seeks.

3. The father shall file and serve any response within 42 days of today.

4. Any filing fee in respect of the documents ordered to be filed pursuant to orders (2) and (3) above, be waived.

5. The matter be listed before a registrar on a date and time to be advised for directions as to the further progress of this matter in light of the compliance (or non-compliance as the case may be) with paragraphs (2) and (3) of these orders.

6. The matter be listed thereafter for mention before Justice Murphy, at 11.00am on 7 September 2010 in the Brisbane Registry of the Family Court of Australia.

7. The interests, in these proceedings, of the children, A born … June 2005, and L born … November 2007 be independently represented by a lawyer and it is requested that Legal Aid Queensland arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Brisbane.

IT IS NOTED that publication of this judgment under the pseudonym Fitzroy & Fitzroy is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5947 of 2008

MR FITZROY

Applicant

And

MS FITZROY

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 5 and 6 August 2009, parenting proceedings between these two parents were conducted before me.  Some eight weeks after the conclusion of that trial, orders were made and lengthy reasons delivered in support of those orders. As a result of events that have occurred since October 2009, the mother seeks to re-agitate parenting proceedings, only some six or seven months after orders were delivered. 

2. It is, I think, important, in the context of the current application, to set out at the outset a number of the specific findings made by me in those earlier reasons delivered on 6 October 2009:-

   77.The mother is (and, I consider, always has been) a highly anxious, hypervigilant parent and will likely remain so into the foreseeable future. 

   78.The mother’s anxiety and hypervigilance affects her capacity to nurture optimally the children. 

   …

   80.    If the mother, though, exercised a choice to establish a post-separation life in [Y, northern Queensland], there is a likelihood that the exigencies of the father’s life (including the full-time care of [B]), the practical difficulties inherent in co-parenting where a significant geographic distance separates the children’s co-nurturers, and the financial ramifications of weekend time, will result in the children not having the opportunity to spend regular and frequent time with their father.

   …

   82.    It is beneficial for the children, given their ages and consequent stages of development, to spend regular and frequent time with their father.

   …

   84.    That this can occur in circumstances where the mother’s anxiety is (to the extent possible via court orders) reduced, is likely to be of benefit to the children; the children will likely benefit from being in the predominant care of a mother who is more relaxed and less anxious in the event that she is able to establish a post-separation life of her choosing.

   85.    It is important for the children to establish a stable place which they can identify as their home when in their father’s care, and to feel comfortable there - as Ms [D] put it, to “establish a place in their father’s world”.  This represents a benefit to them and is important at their particular ages and consequent stages of development.

   …

   160.   My strong impression is that the mother would see an effective restriction to a close geographic locality as the father (and probably his parents) “controlling her” and her life and I consider this would impact upon her psychologically and, probably, significantly.  I don’t suggest that, as a result, the mother’s parenting would become “bad” or “inadequate” or any such.  Rather, I consider that if the mother can commence to establish for herself a life at a place of her choosing (even if be, as it were, a “compromise” such as the Sunshine Coast), she is likely to be much more relaxed and happy and to bring those qualities to her parenting to the benefit of the children. I am confident that the re-establishment of the mother in a post-separation life with the children will be a significant factor in alleviating her obvious stress. 

3. As ultimately framed, the orders made by me after that trial sought to provide flexibility bearing in mind those matters of principle set down by decisions of the High Court, such as AIF v AMS (1999) 24 FamLR 756; U v U (2002) 29 FamLR 74. That is, the orders did not purport to require the mother to live, or not live, anywhere. That intention can be seen reflected in paragraphs 217 and 218 of the reasons for judgment which provide:

   217. I do not consider it appropriate in the form of order to provide a restriction on the mother living at a place, or within a radius of either of Brisbane or the father’s residence, arbitrarily chosen by me.  Such a form of order tends, in any event, to take attention away from the court’s proper task and the proper task of orders made, mainly to provide for co-parenting arrangements found to be in the best interests of the children.

   218. It is appropriate to notate the mother’s intention to reside on the Sunshine Coast, but, of course, inherent in the orders is a choice of a place of residence by her, but which avails the children of the ordered weekend time.  So, too, a notation ought reflect the current choice of residence by the father.  Axiomatically, a choice of a place of residence by him different to that noted is not restricted.

4. The orders then recorded – primarily by way of notation – what might crudely be described as a “compromise position”.  The mother’s proposal to live in Y would not have permitted time between the children and their father with the regularity determined by me to be in the children’s best interests.  But, an alternative proposal put forward by the mother during the course of the trial that she work and live in the Sunshine Coast area, whilst not providing the quantity of time defined in the Act as “substantial and significant” which such time was recommended by the family consultant, Ms D, would nevertheless provide the father with the opportunity to enjoy regular time with the children, which such time I found specifically was in their best interests.

5. It is crucial to understand the father did not then, and has not since, asserted a primary case that the children live with him.  At all times during the course of the trial, and indeed in any application made by him since, the mother being the primary carer of these children in terms of caring time, is conceded. 

6. Shortly after the orders were made after the final hearing the mother apparently formed an intention to move to T, near E on Queensland’s central coast.  She deposes in an affidavit filed by her on 29 April 2010:

   19.    On or around mid October 2009 I decided that, for my own mental health, I would need to relocate to where I had family support.  I have family in [Y], however, I chose to relocate to [T] as this is closer to (the father’s) residence.  (The father) also has friends and family in the [T] area so I assumed that he would be able to spend time with the children without having to pay for accommodation costs.

   20.    I was of the understanding that I could not bring proceedings back before the courts because final orders had been made.  However, I have always intended to comply with the final orders so that the father spend time with the children for half of the school holidays and for every second weekend.  I sought advice from two separate barristers who advised me that the orders did not preclude me from relocating as long as I continued to comply with the orders.

   21.     I advised (the father’s) solicitors of my intention to relocate in October 2009.

7. Annexed to that affidavit are emails from the mother, the first dated 13 October 2009 (which it should be noted is one week after the orders were made by me and the reasons handed down).  That email says, in part:

   I am intending on relocating to [E on the central Queensland coast] in the near future.  I will not be working Fridays to ensure that I can have the children at a halfway point to effect the orders.

   The email goes on to specify H as an approximate halfway point between T and M in Brisbane where the father is residing.  The email also goes on to say that:

   Although there is some distance incurred, I see that as soon as [A] turns five in August air travel can be utilised.  (The father) also has the ability to travel to [E] to see the children at no cost as he has relatives in [E].

8. The orders as made, it might be noted, provided for alternate weekend time, from after school Friday until 6 pm Sunday, or Monday if a public holiday or pupil-free day.  Paragraph 4 of the orders provided that changeover occur by the mother delivering the children at the commencement of time:

   ... at a convenient place approximately halfway between [M] and her place of residence and the father collecting the children at that place, and by the father returning the children to the mother at that place at the conclusion of such time.

   The reference by the mother in the email just referred to to H can be seen to be a reference - or at least an assertion by her - as to compliance with that paragraph of the orders.

9. An email sent by the mother the following day to the father’s solicitors says:

   I will be relocating, and I do not see anywhere in the document that it does not say that I cannot move as long as the order is met.  I will be meeting the order as stated and cited by Murphy J to the letter.

10. It might be appreciated from what has already been said that, as the notation to the orders reflects, those orders were predicated upon the mother living in the Sunshine Coast area (or at some other place, it might be said) such that weekend time could be facilitated regularly and appropriately between the parties.  Thus, the mother’s position, said to be received upon advice and otherwise in accordance with, it seems, her asserted perception, is that, despite a specific notation in the orders (that: “These orders are predicated on the intention of the mother to reside within the Sunshine Coast area, and the intention of the father to continue to reside in the [M] area”), and a focus upon that specific issue during the course of the trial and, despite references in the reasons for judgment and discussions during the trial about the importance of the reasonable practicability of the travel between the parties for the children, the orders could be complied with if she lived in T.

11. It is appropriate, I think, to quote in that respect what was said in the reasons for judgment about what might be conveniently described as the reasonable practicality insofar as the children were concerned of that time:

    50.    If time was exercised in [Y], time would be spent by the father and [B] in a “non-home” environment during weekend time.  The children would have limited opportunities to experience, on a regular basis, a “home base” created for them by their father.  By dint of those matters, the capacity for the children to have stability and predictability about the regular role of the father in their lives is somewhat curtailed.

    51.    Financial capacity is but one aspect of an ultimate finding as to whether time can reasonably be accommodated by the father and the children. 

    52.    I strongly suspect that, by reason of a combination of the matters just referred to, regular time between the children and their father (and time between the children and their sister) is, over time, unlikely to occur with frequency or real regularity.  Specifically, commendable though the attempts by the mother to maximise weekend time are, I think it highly unlikely that weekend time would occur with the regularity or frequency contemplated by Exhibit W1. 

    53.    Each and all of the matters just described must be seen against the fundamentally important fact that the children are yet very young and, consequentially, at an early stage in their development and the development of their relationship with their father.

    (b)    Sunshine Coast

    54.    The practicalities of facilitating weekend time between the southernmost outskirts of Brisbane and the Sunshine Coast, situated to Brisbane’s north, are also not without difficulty.  But, in my view, they are by no means of the same magnitude as those involving time between Brisbane and [Y].

    …

    89.    If the mother was to establish a home for herself and the children at a place on the Sunshine Coast – and, therefore, significantly geographically closer to the father than [Y] – there is a greater opportunity for, and likelihood of, each of the parents facilitating and encouraging a close and continuing relationship between the children and each of their parents.  Specifically, there is a greater opportunity for, and likelihood of, the mother, as the children’s primary carer, doing so.

12. The concerns there expressed, and the underlying intention, redolent in the reasons and the orders that the children should spend meaningful time with their father as ordered, but in a way which did not impose too great a burden upon them, can also be seen to have been important when regard is had, in particular, to additional parts of the reasons, in particular, what was said under the heading “Orders Reflecting [L] and [A’s] Best Interests”, including:

    210.   Assuming, as do the parties, that the best interests of these children are best met by them receiving their predominant day to day care from their mother, I consider it in the best interests of these children, at their current ages and stages of development that they spend alternate weekend time with their father.

    211.   The mother’s proposed move to [Y], for all of the reasons earlier discussed would not permit, on a practical level, of that occurring.  I consider it highly likely that the combination of circumstances earlier discussed would lead – probably sooner rather than later – to regular weekend time not being spent with the father.  I consider that contrary to the best interests of the children at this stage in their lives.

    …

    215.   The mother’s (legitimate) desire to move to [Y] should, in my view, give way to what I assess as being in the children’s best interest by reason of the need (as I find it) for the children to reliably spend alternate weekend time with the father (and, through him, their paternal grandparents).

13. Upon the mother’s move with the children to T, the father initially filed an application for contravention.  Sensibly, as it seems to me, the father did not proceed with that application; the potential remedies afforded to him were not germane to the central problem and issues confronting him in the circumstances just described.  The application otherwise brought by him is, in effect, to enforce the orders made by me after the earlier hearing. 

14. It will be apparent from what I have already said that that application confronts a potential difficulty.  The difficulty is that the mother says that it is her intention to comply strictly with the terms of that order.  That is to say, it is the mother’s intention to provide the children for time each alternate weekend with a changeover occurring at an approximate halfway point which she asserts to be H. 

15. The difference in the amount of travel and consequent burden upon the children inherent in that proposal, when compared with the children living on the Sunshine Coast can be seen from the fact that the mother’s evidence discloses a very significant drive time between T and Brisbane, (although it is asserted that the travel will sometimes be accommodated via air and/or via rail).

16. In simple terms, it is submitted on the father’s behalf in seeking to enforce the orders, that the matters just described mean that the orders can’t, or won’t, be complied with.  But, I am not sure that is right. 

17. It seems to me that the issue raised on behalf of the father is a different issue; if the orders in their current form are complied with, as it were to the letter, by the mother that presents issues directly relevant to the best interests of the children.  I agree with that assertion. But, it seems to me that, the fact that read strictly in their terms, (noting in particular that the reference to the predication of the orders is a notation) presents the father with a problem. I will return to it below.

18. On 25 March 2010 I made a number of orders, consequent upon the mother’s assertion that further parenting proceedings ought be permitted. Her application (albeit contained in a response) filed on 29 April 2010 seeks orders different to those made by me after the trial on 6 October. Relevant for present purposes, the orders sought by her provide that the children spend time with the father one weekend per month, together with school holiday and other periods.  Accordingly, the mother seeks to change, in a substantive way, parenting orders made approximately six months prior to the application initiated by her. 

19. Any such application confronts what is commonly known as the “rule in Rice & Asplund”.  With that in mind, when the matter first came before me on 25 March 2010, I made a number of orders after discussions with the solicitor for the father and the mother who was then representing herself.  In particular, it was made clear that, on the further return date of the matter, what is sometimes referred to as a “threshold question” or “preliminary issue” emanating from the so-called rule in Rice & Asplund would be dealt with as a discrete issue. 

20. It is incumbent upon the court to make it clear what proceedings are being dealt with and in what manner when the rule in Rice & Asplund is raised (see Miller v Harrington (2008) FamCAFC 150 and SPS & PLS (2008) FLC 93-363). With that in mind, I made orders on 25 March 2010 facilitating the hearing of that “threshold question” and orders for the filing of material confined to that issue.

21. It is, on any view of the evidence, plain that changes have occurred in the relevant sense since the orders were made by me on 6 October. 

22. First, the mother and children now live in T, a distance considerably further from the father’s residence at M than the contemplated distance between the father’s residence and the Sunshine Coast.  They have been living in T since about February 2010. 

1. Second, the mother asserts that her anxiety, which had been referred to as a significant matter in the reasons for judgment, has been significantly exacerbated.  That this issue was upper most in the court’s mind at the time of the original trial can be seen, for example, by specific findings made at paragraphs 77 and 78 of the reasons for judgment quoted above. 

2. The mother says that her mental health has deteriorated to a stage where she has had “suicidal thoughts”.  Whilst that proposition may not necessarily be accepted when the occasion arises for factual determinations to be made, it is accepted that the mother has consulted a psychologist on four occasions since approximately February 2010 and most recently a psychiatrist on one occasion in May 2010.  It is said that those consultations are in respect of “post‑traumatic stress disorder”, again a matter which may not necessarily be accepted when a factual determination of matters is made, but it is accepted that those consultations are made in respect of WorkCover issues relating to the mother.

3. At the time of trial the mother was working in the Public Service in Brisbane; it is clear that she is now not working at all.  She ascribes this primarily, as I understand it, to what she asserts to be the deterioration in her mental health since the time of the trial. 

4. At the time of the trial it was hoped that the conclusion of the trial process, and the orders made after it, would result in a stable and relaxed mother in circumstances where, by compliance with the orders, the mother was separated from the father and his parents and what she considered to be the pressure exerted by them.

5. In that respect, it is important, I think, to repeat what was said in my trial reasons at paragraph 160 quoted earlier.

6. It is plain that, whatever might have been the catalysts for it - and the rights and wrongs of it – the hoped-for more stable and relaxed persona on the part of the mother has not eventuated.  On her case, she has become significantly less so in each respect. 

7. In a similar vein it was hoped that there would be a return to the cooperative relationship which was said to have previously existed between the paternal grandparents and the mother.  That issue was a significant aspect of the matters discussed during the two days of trial before me.

8. To that extent, there was discussion at the trial about the extent to which co‑operative arrangements between the paternal grandparents and the mother might see the paternal grandparents visit the mother, wherever she might be living, so as to avail them of time with their grandchildren.  That hoped-for eventuality, made in the context of findings outlined in those earlier reasons for judgment about the potential benefit for the children in seeing their grandparents, has also not eventuated. 

9. Again, whatever might be the whys and wherefores and rights and wrongs of any such situation, the fact is that within three weeks of the decision having been made by me the grandparents initiated two complaints to the Queensland Public Service about the mother. Exhibit F1 in the proceedings, which is a document from the Queensland Public Service under the hand of the Director of the Human Resources Division thereof, specifies the complaint as being:

   [The mother] was harassing [the father] to give approval to her transferring to [E] with their children which was in breach of Family Law Court order in relation to the custody of the children.  You further alleged [the mother] perjured herself during an associated Family Law Court matter.

10. It could not possibly be thought, on any view, that approaching the employer of a woman found by me to be highly anxious and hypervigilant could in any way, shape, or form have assisted that woman to parent the children in an appropriate and relaxed way, (which I also found at the trial was in the children’s best interests).

11. It is interesting to note that the complaint, at least insofar as it relates to perjury, about incidents occurring during the trial in August, was made approximately three weeks after the decision was handed down, and it would seem, shortly consequent upon the emails sent by the mother to the father’s solicitors earlier referred to. 

12. The grandparents made a further complaint to the Queensland Public Service on 18 January 2010.  Exhibit F1 records that complaint as being:

    [The mother] failed to comply with the statutory obligation imposed by a Family Law Court order that she must not move any further north than the Sunshine Coast in that [the mother] moved to [T] ([E]).

13. Again, I find it very difficult to understand how it was thought appropriate by the grandparents to involve the Queensland Public Service in what is plainly not only a civil matter, but a matrimonial matter involving the best interests of children. 

14. Quite how the grandparents thought that that would in any way, shape, or form assist either in the mother’s parenting of the children (noting that the father, their son, has never at any time sought an order for residence), let alone the cooperative relationship which was hoped to occur between the mother and the grandparents, is utterly beyond me.

15. The mother deposes, in her affidavit filed on 29 April 2010, of the complaints made to the Queensland Public Service just referred to:

    13.    This review process means that my career as a [public servant] is in jeopardy.  I’ve had personnel from the Queensland [Public Service] say to me words to the effect of, “You’re career is over.”  I was advised that I was unlikely to receive a transfer to another location until investigation is completed.  I was also advised by Queensland [public service] personnel that the investigation may seriously hamper any transfer request, especially to a popular area like the Sunshine Coast.

    14.     As a result of the post-traumatic stress from the nature of my work, the court hearing, and the investigation into my employment I was advised by my boss and other personnel in corporate management to take long service leave.  My boss expressed concerns to me that I would not be able to function in my normal role due to the post‑traumatic stress.  I have been on leave since mid October 2009. 

16. It will be appreciated that virtually the whole of that evidence is hearsay and would, in normal circumstances, be inadmissible.  However, the provisions of Division 12A, both insofar as they relate specifically to the receipt of evidence, but also insofar as they relate to the principles to be applied by a court in parenting cases, make it plain that such evidence ought be received. 

17. The Division, of course, makes plain that weight should be attached to the evidence as the court might think fit.  I am concerned about the evidence in its current form by reason of it being hearsay and by reason of the fact that no, as it were, corroborative evidence has been provided by the mother, either in respect of what is said to have been indicated to her by the Queensland Public Service or, indeed, from any medical practitioner who might have indicated to her that she suffered from “post-traumatic stress”, or indeed any other psychological condition. 

18. However, in the context of the narrower ambit of the current issue, it seems to me appropriate to take that evidence into account.  I make it clear that in any subsequent parenting proceedings between the parties I am likely to attach significantly less weight to that evidence in that form than I do in the context of the current proceedings. 

19. Furthermore, whatever might be the precise merits of what was, or was not, said to the mother, it seems abundantly plain that the complaint made by the paternal grandparents has had a significant impact not only in the way deposed, but has also had at least some impact in respect of the mother’s psychological health and, inferentially, at least, her capacity to parent.

20. The letter dated 6 March 2010, which is exhibit F1, goes on to indicate that a subsequent investigation was carried out by an officer of the Public Service and that the investigation:

    ... did not support [the] allegations.  The investigation was overviewed by a senior officer who concurred with [Senior Public Servant K’s] investigatory conclusions. Your allegations, therefore, could not be substantiated.

21. Thus, it would seem that at least as at 6 March 2010, the allegations made against the mother have, for the purposes of the Queensland Public Service, been rejected.  That does not necessarily mean that the assertions by the mother that statements of the type she indicated had been made were necessarily not made, or, indeed, that her “exoneration” will necessarily have any real effect in practical terms.

22. I return now to a matter raised earlier in these reasons.  Mr Rosen, on behalf of the father, asserts, correctly as it seems to me, that in circumstances where the mother lives in T and the father lives at M, strict compliance with the orders is likely to place a significant burden upon the children.  He cites, the travel requirements and distances involved (whatever be the means of transportation). 

23. It remains to be seen whether, in fact, the mother’s intention is made good.  However, insofar as the instant application is concerned, it seems to me that the evidence is that the orders in their current form are intended to be complied with, and indeed that the father’s case is that, with one exception, they have been effectively complied with.

24. That presents a dilemma, as it seems to me, for Mr Rosen who asserts that the threshold test has not been met.  In essence, all of the submissions made by Mr Rosen, which have force with respect to the best interests of these children, point in fact to the orders in their current terms potentially needing change of some sort. 

25. It seems to me that Mr Rosen’s submissions are in that respect actually tantamount to a submission that suggests that, although they ought not be changed in the manner suggested by the mother, that at least some change is required of them. That that is of itself, in my view, a pointer to the fact that there have been material changes since the orders were made in the sense referred to in Rice & Asplund and the decisions of the Full Court earlier referred to. 

26. Whether that is so or not, it seems to me that all of the matters referred to, when taken as a whole, can be described as material and to constitute a change to that which formed the basis upon which parenting orders were made in the children’s best interests as at October 2009.

27. In that respect it is important to refer to what Warnick J said in the decision of SPS & PLS earlier referred to, at par [81], cited with approval by a subsequent Full Court in Miller v Harrington: 

    81.    Thus, in my view, when the threshold question described in Rice & 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 the 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.

28. It seems to me that this distinction is, with great respect, very important.  The issue here is not what might be the merits, or demerits, of the respective cases in respect of the best interests of the children; rather the issue is whether sufficient evidence has been placed before the court so as to satisfy the court that there has been a sufficient change of circumstances sufficient to “justify embarking on a hearing”.

29. Equally importantly, as it seems to me with respect, is  what Warnick J went on to say in that case:

    Though sometimes unstated, the underlying conclusion will, or ought be, about the interests of the child in not being subjected to further litigation, is more powerfully in the child’s welfare, than to allow the application to continue.

    Here that the combination of the facts and circumstances just outlined, including importantly the facts and circumstances raised by Mr Rosen on behalf of the father about the potential burden upon the children of compliance with orders that currently exist, is indicative of it being “more powerfully in the child’s welfare” to “allow the application to continue”, rather than to prevent it from doing so.

30. For those reasons, I am satisfied that there is a material change within the meaning of those authorities to which I have just referred, and I propose to make orders adjourning this matter for further directions to a registrar. 

31. I also propose to receive submissions from each of the parties as to whether I should appoint an independent children’s lawyer and order, at this point, a further report, pursuant to s 62G of the Act. 

32. I will also make orders that the applicant mother file within 14 days any amended application setting out the orders sought by her upon the determination of parenting proceedings in the event that she seeks any orders different from those contained in the “response to initiating application” filed on 29 April 2010.  I will designate that the mother be the applicant for the purposes of these proceedings.

33. I will order that the respondent file a response to that application within 14 days after receipt of any amended application by the mother.  I will also direct that this matter remain in my docket and will be case managed by me to a hearing.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  2 June 2010