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Consideration of Rice and Asplund

A father was entitled to a rehearing of parenting proceedings that had been decided several years earlier, because the Federal Magistrate erred in his application of the rule in Rice and Asplund.

CCH News
13 May 2008

Consideration of Rice and Asplund

A father was entitled to a rehearing of parenting proceedings that had been decided several years earlier, because the Federal Magistrate erred in his application of the rule in Rice and Asplund.

In SPS and PLS (2008) FLC ¶93-363 The father appealed against an order of a federal magistrate dismissing his application that he and the mother share equally the care of their children and, if equal care was not ordered, that his time with the children be increased.

Some years prior to the filing of the application, a final order had been made, after a contested hearing, which provided that the children live with the mother and spend time with the father for four days a fortnight and half of the school holidays.

The father's grounds of appeal related to the following:

  • The federal magistrate's application of the rule in Rice and Asplund
  • A failure by the federal magistrate to admit into evidence a court ordered family report and an allegedly consequent failure to give any weight to the wishes of the children and the recommendations of the family reporter, and
  • A failure to accord the father natural justice, both in respect of the refusal to admit the family report and an asserted failure to sufficiently explain to the self-represented father the rule in Rice and Asplund.

Warnick J made a detailed analysis of the rule in Rice and Asplund, that where a final order parenting order has already been made, the applicant must establish a significant change of circumstance before a rehearing can take place.

His Honour and concluded that a more extensive and subtle consideration of the application of the rule in Rice and Asplund than that given by the federal magistrate was necessary and made the following observations on the rule (at para 48):

(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.


In his Honour's view, the federal magistrate fell into appealable error because of his:

  • misapprehension of the parameters of the earlier contested hearing and the result measured against those parameters
  • failure to recognise that the wishes of the children were not an issue in the earlier proceedings
  • failure to discuss the children's wishes as they were on the evidence before him, and
  • incorrect treatment of the recommendations of the family reporter.

The appeal was allowed and the matter was remitted for rehearing.

Attachment

4MYDAUGHTER
Do I read this correctly that Children's wishes, changed or now apparent, could be a factor in getting past Rice and Asplund?
That's how I read it.

4MYDAUGHTER
There was an article on the ste earlier tonight, by Jill Burrett and Michael Greene about the incorrect conclusions drawn from reseaerch into problems with shard care situations.

Now I cant find it, I want to copy it and send it to various people that could help my case.

Can some one help me find it and copy it plse
4mydaughter, this is the same federal magistrate who concluded my case on rice and asplund also, a considerable cause of my anxiety and depression !

Monaro, sorry you had to go through that.

As I have said to you once before, there is no way i would run a case through the Federal Magistrates court.

Family Law is not their area specialisation. This is only my opinion.

4MYDAUGHTER
Posts from this topic have been moved by members. 3 posts have been transferred to topicview. This thread was moved to a private SRL forum, change of circumstances under Rice and Asplund.

Last edit: by Secretary SPCA


Executive Secretary - Shared Parenting Council of Australia
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Posts from this topic have been moved by members. 1 posts have been transferred to topicview.

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FMC Administrative Law

4mydaughter said
Family Law is not their area specialisation. This is only my opinion.
 
Has anyone ever tried to run an administrative law case through the FMC?

This is not as off topic as it seems - the magistrate tried to tell me my case could be considered by the family court but it was not a family law matter.

The magistrate also had no idea what could or could not be addressed through SSAT, incorrectly telling me that my issue should be taken there when it was specifically listed as not something they can consider.
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