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Rice and Asplund and Dr Tom

How many cases have there been where a FM like Dr Tom has overturned a Family Court decision under the Rice and Asplund principle, and given a father shared care? And how many of these cases were then again overturned by the Family Court on Appeal and the

How many cases have there been where a FM like Dr Tom has overturned a Family Court decision under the Rice and Asplund principle, and given a father shared care? And how many of these cases were then again overturned by the Family Court on Appeal and the mother given full custody again?

These questions must be relevant in deciding whether to apply for a variation in the Family Court or in the FMC.
There are a couple of points to address here:

Rice and Asplund was a court case and a precedent which you must overcome in order to have your case re-heard/re-listed. It is not an insignificant obsticle. If you join the SRL-r there is a very lengthy and informative thread on there about it.

Once you over come this and are back in court, you then have to mount a very good case as to why your arrangements should be changed to encompass shared care. Your current arrangements will come under scrutiny, especially how you negotiate and communicate with your ex.

To my knowledge, no one has done the research on the statistics as to judgements being overturned on appeal. I may be wrong.

Given how much family law has changed in the last two years, you would have to question the relevance in any case.

Others can give you more information about where you would be better to file.

The most important thing is making sure you have a VERY convincing argument in order to overcome R and A.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 

Read Please

Vangorp.

Before you make any more posts you should read the posts in this link:

http://flwg.com.au/forum/index.php?page=topicview&id=1150&kfs63=0


 Senior Site Moderator and Administrator
vangorp said
How many cases have there been where a FM like Dr Tom has overturned a Family Court decision under the Rice and Asplund principle, and given a father shared care? And how many of these cases were then again overturned by the Family Court on Appeal and the mother given full custody again?

These questions must be relevant in deciding whether to apply for a variation in the Family Court or in the FMC.
The Court you enter may be determined by the single intake system and expected trial duration and not what Court you apply to.

You should be more concerned if you intend to make an application - just how good your case is.

Or is your question academic?

What's Custody? apart form a word that dissapeared from Court terminology a few years ago. I note that 'Sisyphus' has suggested you read his postings - the site glossary might be good as well.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
vangorp said
How many cases have there been where a FM like Dr Tom has overturned a Family Court decision under the Rice and Asplund principle, and given a father shared care? And how many of these cases were then again overturned by the Family Court on Appeal and the mother given full custody again?

These questions must be relevant in deciding whether to apply for a variation in the Family Court or in the FMC.
I would suggest you Click on this TOPIC link to see an extensive discussion on Rice and Asplund. You can also use the SEARCH button located at the bottom of the forums screen and search which will return hundreds of responses.

Rice and Asplund is all about "re-entering" the system, either Federal Magistrates or Family Court. It is not about reversing any orders made and or enhancing or modifying any existing orders. It is a threshold to get over before your matter will be entertained in any depth. It is a very frustrating area for us as there are really no clear definitive guidlines. It is an area we have drafted a document that may help the court and AG clarify and impliment some guidelines. The document is in final edits and draft.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
I would like to join the private section of the SRL-R Change of Circumstances so as to discuss my case. Can you help me navigate the site to do that plse
Go to the front page of the site and click the menu item on the right "Self Represented Litigants" Then follow the menu on the left re joining.

When you are swimming down a creek and an eel bites your cheek, that's a Moray.
I suggest reading this Full Court judgement by Warnick J which puts Rice and Asplund into perspective under the new laws:

SPS and PLS FamCAFC 16  28 February 2008

As I read it, the key sentence is "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 that the rule may be applied "as a preliminary matter" or the 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".
Unfortunately I think you have misunderstood this Appeal

It does not put Rice and Asplund into a new perspective

Firstly it was not Full Court - it was an appeal from the FMC to a single FCoA Judge

I read the Appeal as:

Allowed the case to proceed as normal and then used Rice and Asplund to dismiss it.

Did not take into account the Report.

Did not look at Browns previous judgement.


Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
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