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RICE AND ASLUND

SUCCESSFUL CASES WHO HAVE PASSED THE TEST

If anyone has a list of successful cases where the test of rice and asplund have been applied and passed successfully could you please post them
The Rice and Asplund test is not straight forward and is not so prescriptive that we are able to get, or give you a list of items that meet compliance.

You clearly have not used the SEARCH button on the site because there are many good posts that discuss RICE and ASPLUND matters. The Judicial officers often have different takes on what they will admit and what they won't before they determine to deal with R&A matters. Some like to see what the issue is and if the argument is persuasive will make orders. Others want to determine the R&A compliance matters up front and if over the hurdle you may proceed. In general I can tell you that it has to be a significant change in circumstances. A two week stop in hospital for the resident parent is not enough say to make changes to orders but a residential parent who has a defined and terminal illness would be. A change of residence 20 minutes away may not be adequate but a change 100 or 200 km away would be. It is very hard to give you a definitive answer to this question. All I can really say is that it is not easy to get matters up again after a case has been decided. They make it that way to ensure litigation is not on going and cyclic. Make sure you have a very good reason before you start as you may see an order for costs if you are wholly unsuccessful and often they are significant costs.

One such thread link is provided there are many others.

The SRL people may have more definitive answers on this but I suggest you need to really consider carefully and read a number of threads on the site as well as a range of judgements.

Make sure you search RICE and ASPLUND as well as RICE & ASPLUND. You should see around 150 posts or more.

Executive Secretary - Shared Parenting Council of Australia
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I made an application to the FMC earlier this year with respect to a relocation (Ex announced she was moving the children 1.5 hours away, a month after my new partner and I had bought a house within 20 minutes of their home/school.)

Ex's barrister argued Rice & Asplund and sought that my application be dismissed.  Magistrate had already made up their mind based on the affidavit evidence both sides had submitted prior to the initial hearing, and made this abundantly clear when we got into the courtroom.  After a frantic submission by the Ex's barrister, the Magistrate ruled that R&A did not apply with respect to my application and allowed it to proceed because:

  • The existing consent orders were some 7 years old and made prior to the children attending school, which is something the consent orders did not contemplate;
  • I had made every effort in remaining close to the children during these 6 years (moved house 3 times, and changed jobs to be close to the kids);
  • Moving home and schools is a "major" disruption for the children and was not always in the children's best interest (in this magistrate's mind anyhow) and she wasn't satisfied with the reasons Ex gave for relocation;
Overall, this particular Magistrate stated that in their opinion, the R&A principals were dated and did not reflect modern family life, and also stated that the R&A argument was being used far too often by counsel in an attempt to thwart what is usually a legitimate application to the Court.  The matter is listed for trial soon so the results will be interesting.

I guess that if you're pinned down by dated orders that don't contemplate current circumstances & the other side won't negotiate, & have made every attempt to be a part of your children's lives over the years, then any R&A thrown up by the other side's counsel will be thwarted.  Of course this depends on the Magistrate hearing the matter applying some common sense.
I'm Self Represented.

The Ex's legal 'team' is diligently pushing the R&A test. I'm not overly confident of the Magistrate siding with my feelings.

This case started in 2000. . .  2005 Orders were handed down. Kids were 6 & 7 yrs.

My daughter, 11, (and son, 13 to a lesser degree) has shown real want to have me further involved in her life.

At present I have a 2 weekly arrangement. 10 days with mother, then 4 days with me.

I am applying 4 a straight 7 / 7 split. . .

The mother has remarked to me some time ago. "Unless we get along better, the judge isn't going to look at this case. haha - So I just won't get along with you haha"

I really feel sad that I have to go back to court. But now feel I have the responsibility to my children.
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