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Rice v Asplund - Altobelli quoting FCA Full Court Kay, Warnick & O'Ryan JJ

FM Altobelli lists some previous judgments re change in circumstances.

This judgement, by Tom Altobelli, that invokes Rice and Asplund to dismiss the father, is disappointing because it is difficult to see how providing the father with copies of the child's school reports could really negatively affect the child (except by deliberate action of the mother), as Altobelli suggests:

"He needs to be protected from the adverse consequences of this litigation. Regrettably on the facts of this case, the potential harm to him of hearing what is in reality a very discrete application filed by his father, would outweigh the benefit to him of dealing with the matter in the normal course."

http://www.austlii.edu.au/au/cases/cth/FMCAfam/2007/1039.html
Federal Magistrates Court of Australia
P & S (No.2) [2007] FMCAfam 1039 (6 December 2007)
Judgment of: Altobelli FM
FAMILY LAW - Rice v Asplund - sole parental responsibility - receipt of school reports.

http://www.austlii.edu.au/au/cases/cth/family_ct/2004/568.html
Family Court of Australia
F & C & Child Representative [2004] FamCA 568 (23 June 2004)
Judgement of: Kay, Warnick & O'Ryan JJ
APPEAL - Residence - Mother seeking to re-litigate residence issues - Open to trial Judge to summarily dismiss application on basis that it failed to meet Rice v Asplund test - No substantial change in circumstances or evidence likely to produce different result



http://www.austlii.edu.au/au/cases/cth/FMCAfam/2007/1039.html
P & S (No.2) [2007] FMCAfam 1039 (6 December 2007)

REASONS FOR JUDGEMENT

Introduction

1. This case is about B who was born in September 1996, and is eleven years old. B's father, P, is the applicant and, in substance, he seeks orders that would enable him to receive P's school reports. That is the only order he seeks. B's mother is S. She opposes that application and asks the court to summarily dismiss the application. She says, in effect, that it is not in B's best interest for there to be further litigation in relation to him. She invokes the rule in Rice & Asplund (1979) FLC 90-215 ("Rice & Asplund"). I agreed with the mother's submissions that in this case the Rice v Asplund issue needed to be dealt with as a distinct and preliminary issue. The history of the litigation between these parents is extensive and complex. The harsh reality is that the first order made in relation to B was made on 15 June 1998, when he was not even two years old. For most of his life, B's parents have been engaged in litigation relating to him.

Issues

3. In a Rice v Asplund or summary dismissal application in this context the issues are quite discrete. The issues may be framed as a series of questions

a. Has there been a change of circumstances to a degree that would justify a reconsideration, even in part, of the previous orders made in relation to B?

b. Whether or not there has been a change of circumstances is it nonetheless in B's best interests that his father's application proceeds to a hearing?

Applicable law

4. A useful statement of the relevant law is contained in the Full Court's decision in F & C [2004] FamCA 568, a decision of Kay, Warnick and O'Ryan JJ at paragraphs 36-47:

Relevant principles to be applied when summarily dealing with an application to relitigate residence issues

36. The Family Law Act 1975 provides in s 65D that in proceedings for a parenting order, the court may make such parenting order as it thinks proper and that a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.

37. There are no guidelines or requirements contained in the Act as to when a court may refuse to entertain an application for the variation of an existing order, nor the matters that a court should consider in determining whether or not to exercise its jurisdiction (c/f s 83(2) - requirements to be satisfied before varying a maintenance order).

38. The principles that have been developed by the Full Court in such applications are well settled. In Rice v Asplund Evatt CJ, with whom Pawley SJ and Fogarty J agreed said at 78,905:

   "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…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…"

39. In Griffiths and Griffiths (1981) FLC 91-064 at 76,500; (1981) 7 Fam LR 322 at 323-324; Lindenmayer J said:

   "In order for the husband to achieve a change of custody, even after a full hearing on the merits, he must establish a significant change of circumstances since the last order was made; a change of circumstances sufficient to justify a review by the Court of the custodial situation…"

40. Nygh J, with who Evatt CJ and Burton J agreed, said in F and N (1987) FLC 91-813; (1987) 11 Fam LR 664 that the Court should be reluctant in assuming jurisdiction too soon after there has been a full and adequate hearing of the custodial dispute between the parties.

41. In Bennett v Bennett (1991) FLC 92-191; (1990) 14 Fam LR 397 Nicholson CJ, Simpson and Finn JJ accepted as correct the general principle expressed by the Full Court in Rice v Asplund that fresh applications for custody should not be entertained unless there existed a substantial change in circumstances.

42. In Saad v Saad (1993) FLC 92-332 at 79,519; (1992) 16 Fam LR 55 at 71 Baker, Lindenmayer and Moss JJ said:

   "(3) Although it may be inappropriate, and is often unhelpful, in proceedings in relation to the guardianship and custody of or access to a child, to treat either party as bearing an onus of proof in relation to the welfare of the child, where a party applies for the variation or discharge of an existing order of that kind that party bears at least a forensic onus of placing before the court sufficient evidence of changed circumstances since the making of the existing order upon which the Court could be satisfied that it is in the interests of the welfare of the child to vary or discharge that order. (Rice and Asplund (1979) FLC 90-725; Freeman and Freeman (1987) FLC 91-857.)

   (4) It was therefore not for the wife to adduce evidence sufficient to satisfy her Honour that Burton, J's [sic] orders should continue in force, but rather for the husband to at least place before her evidence sufficient to justify a reconsideration of those orders, and only if that were done was her Honour called upon to decide, in the exercise of her discretion, whether the welfare of the child required the discharge or variation of those orders, or their continuance."

43. In D and Y (1995) FLC 92-581 at 81,764; (1995) 18 Fam LR 662 at 671-672 Nicholson CJ, Baker and Tolcon JJ appear to have narrowed the circumstances in which a fresh application for a parenting order might be considered when their Honours said:

   "The general principle, that fresh applications for custody should not be entertained unless there exists a substantial change in circumstances, has been consistently stated in cases such as Rice and Asplund, Zabaneh and Zanbaneh, and Bennett and Bennett. In Bennett's case the Full Court considered a ground of appeal which argued that trial Judge had erred by embarking upon a full custody hearing without making it clear she had done so, when she ought to have first determined whether there was a sufficient change in circumstances to warrant doing so. The Full Court said it was a matter of discretion for the trial Judge:

      'The fact that the determination as to whether or not to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing is a discretionary matter, is supported by the remarks of the High Court in refusing leave to appeal in the recent case of Lowe v Lowe (6 April 1990). In that case, Elliot J had, in fact, dealt with the threshold question as a preliminary matter and the High Court thought that it was within his discretion to do so, but made it clear that the matter was one of discretion. We may say in the present case, given its history, we would have been disposed to deal with the threshold question as a preliminary matter, but we are not satisfied that her Honour's discretion miscarried in embarking upon the course that she did.'

   In the present case, we can see no reason for criticising Bell J for exercising his discretion to require the wife to establish as a preliminary matter whether there had been a sufficient change of circumstances to justify the reopening of the issue of custody. There had already been a nine day hearing on this issue a little more than two years previously and the actual change in custody had only occurred following the giving of the decision by Warnick J on 17 December 1992. In such circumstances we consider that a Judge would be extremely loathe to reopen the issue of custody except on strong grounds and would normally require, as Bell J did, that the matter should be determined as a preliminary issue." (emphasis added, citations omitted).

44. Most recently, Collier J, when determining an appeal from a Federal Magistrate in King and Finneran (2001) FLC 93-079 dealt first with an argument that following the extensive amendments to the Family Law Act in 1995, it was now mandatory to conduct a full inquiry of the matters set out in s 68F whenever a parenting order is sought. We agree with his Honour's view that the legislation has not changed sufficiently to cause that which could be done before the 1995 amendments, that is the application of a threshold test, to be unavailable since the coming into effect of the 1995 amendments. His Honour correctly observed at 88,367-88,369:

   ("41.) The rule in Rice and Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing, or …at least a hearing dealing with the section 68F factors, would have to be undertaken and completed.

   (42.) A judge or magistrate exercising jurisdiction under the Family Law Act is not required to undertake the exercise of identification and evaluation that the husband urges. To do so would be to abolish for all effective purposes the opportunity of a court to make a threshold determination in cases where such an early end to the litigation was the best result for the children.

   (43.) …It is clear that a trial judge has a discretion as to whether or not to deal with the matter at a threshold level or to embark upon a full hearing (see Bennett and Bennett (1991) FLC 92-191 ).

   (44.) To apply the test in Rice and Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision. This is not always a clear distinction.

   (49.) Clearly, both words ['significant' and 'substantial'] indicate something out of the ordinary course of events. To be either significant or substantial is to indicate that a matter is of importance, of consequence, of real worth, of ample or considerable amount, quantity, size etc. When related to a change in circumstances, this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.

   (50.) … In D and Y (1995) FLC 92-581 their Honours of the Full Court made a finding that a trial judge has a discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing. Their Honours indicated that in the circumstances that prevailed in that case, that is, a nine day hearing a little more than two years previously, that a judge would be extremely loath to reopen the issue of custody, except on strong grounds. The word strong in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.

   (62.) What is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and requires the court to examine the situation of the children afresh. There is no assistance to be gained from the authorities as to whether or not this can be done cumulatively. The law at present requires that there be a change such as to require re-litigation. That change can be made up of component parts or could rely on one single but major change. However, a cumulative basis for change in circumstances cannot be made simply by weight of numbers of the changes alleged to have occurred.

   (64.) … the purpose of the rule is to protect the children from exposure to further unnecessary litigation."

45. Although this point was not argued before us it may be that there is need to add a caveat to Collier J's view that it may be sufficient to allow a fresh application to proceed if there is a "real likelihood that a change may follow". In CDJ v VAJ (1998) HCA 76; (1988) 197 CLR 172 at 204; FLC 92-828 at 85,449; (1998) HCA 76; 23 Fam LR 755 at 780-781; the High Court determined an appeal concerning the circumstances in which a Full Court might admit further evidence in a parenting case. McHugh, Gummow and Callinan JJ said:

   "(117) The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children's welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better 'custodian' of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.

   (118) The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. 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."

46. Their Honours expressed the view that further evidence might only be allowed if it would clearly have led to a different conclusion. They said [CLR at 217-218; FLC at 85,457-85,458; Fam LR at 792] :

   "(148)…New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A (2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A (2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.

   (149)…in the context of a case such as this one, the relevant purpose of s 93A (2) is to facilitate the correction of an error where that error has probably occurred because the further evidence was not before the primary judge. Because that is so, the proper exercise of the discretion in the circumstances of this case required the Full Court to be affirmatively satisfied of two things. The first was that, given the findings of the trial judge, the further evidence if tendered before him was likely to have produced a different result. It was not enough that the Full Court thought that, upon the whole of the evidence including the further evidence, another judge might make a different order. The second was that the best interests of the children required rehearing of the husband's application, notwithstanding that all members of the family would likely suffer stress, inconvenience and uncertainty as the result of a new hearing. In that context, the financial cost of a further hearing and its impact on the family could not be ignored.

   (150) In some exceptional cases - those concerned with allegations of physical or psychological abuse of a child are an example - it might arguably be a proper exercise of discretion for the Full Court to admit further evidence and order a new hearing even though it is not reasonably satisfied that the evidence would have produced, or at a new hearing would now produce, a different result. In such cases, it may be enough that the court thinks that there is a very real risk, although not a probability, that the current order may actually endanger the child. The consequences for the child may be so grave that arguably the best interests of the child might require the admission of the further evidence and a new hearing to investigate all the available evidence. But if such cases would entitle the Full Court to order a new hearing, they should be regarded as truly exceptional. Ordinarily, even those cases are best left to be dealt with by an application, made pursuant to s 65E, to vary the order the subject of appeal…"

47. Though there may be important distinctions between the considerations bearing upon the receipt of further evidence on appeal and the reopening of a parenting order at first instance, it may be proper that a judge considering an application to relitigate a recently completed parenting case should bear such considerations in mind.


5. I add my own comments to that of the Full Court referred to above. The rule in Rice & Asplund is not an exception to the principle contained in s.60CA of the Act that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration. Rather than the rule being an exception to the paramountcy principle, it is, in fact, a manifestation of it. The impact of conflict on children is well documented.

6. As the Full Court said in Rice & Asplund itself, "change is an ever present factor in human affairs." Having regard to the impact on children of litigation concerning them, the change must be significant indeed. The benefits to them of revisiting the orders have to be substantial in order to justify exposing them to the further litigation between their parents.

Has there been a change in circumstances?

16. The substance of the father's argument in this regard was that because he no longer receives B's reports, this is a change of circumstances. The father asserted that he received both school reports in 2004 and in 2005 and only one in 2006. The father says that he received B's school reports even thought the mother has had sole parental responsibility since 12 May 2005, and even though the 19 April 2004 orders that entitled him to received school reports were discharged on 11 February 2005. He asserts that the orders made on 8 December 2006 have no bearing on the question of whether or not he receives school reports, and thus he had no reason to believe that these orders would impact on his receipt of the reports.

17. The mother did not specifically refute the father's assertion that he had been receiving the school reports. She argued, however that even if he was receiving the reports it was not because of him being entitled, and, in any event, this did not amount to a change in circumstance.

18. Whether or not it is a change in circumstance is a decision to be made having regard to the specific context of the case. Non-receipt of school reports may not amount to a change in circumstances in some cases, indeed possibly in many cases. In this case, however, the context is different. The mother has sole parental responsibility so the father has no legal entitlement to receive school reports other than by way of her consent or court order. The father has no legal right to spend time with the child at all. His only form of communication is by mail, and the father informed me that he has not exercised this right in any event. From the father's perspective, not only is this a change in circumstance, but a significant change. It is the only form of communication of information that he has about his son. He submitted to me that his hope is that, in the future, when his son becomes older, he will be able to have a relationship with him, and by knowing something about him, (i.e. his progress at school) his hope is that this information may form the basis of the that relationship. He agreed that face to face time with his son was not working, but knowing about his progress at school assists him in knowing about his son, even if he cannot know him personally. The denial of school reports, for the father, is a denial of a thin life-line in this regard.

19. I find that on the facts of this case the father has satisfied there me there is a sufficient change of circumstances for him to bring the application he has lodged, subject to this litigation being in B's best interests. He didn't think that the current orders would have any impact on him receiving school reports, but it seems as if they did.

20. That does not, of course, complete the exercise that needs to be undertaken in this case. Is it in B's best interest to allow this litigation to continue? Even if I accept, as I have, that there are changed circumstances I consider myself to have the power to still summarily dismiss the application if the proceedings are not in B's best interests. This is because the cases dealing with the Rice v Asplund principle make it clear that even if there are changed circumstances, they must be such as to warrant the discharge of an earlier order. i.e. that the litigation is still necessary.

21. In this case I cannot ignore the history of the litigation between the parents. The level of conflict between these parents is very high, the nature of the conflict between them seems chronic and entrenched. Even though the orders sought by the father are very narrow, the recent history of this litigation indicates that the mother will fight this litigation to the very end. The affidavit filed by the mother in the previous litigation indicates that she believes the child has expressed strong negative views about having any relationship with his father. Even if I thought I could protect him from this litigation by orders that require the mother not to discuss the litigation with him, there is the real prospect that his own views will become an important factor for me to consider. The dilemma, of course, is that ascertaining those views necessarily involves him in the very proceedings I would like to protect him from. The mother had asked for, and I had declined her application, for the appointment of an ICL. That was, however, before I had read the parties' previous file, and had therefore not become aware of the nature of the litigation between them. It is clear now that the appointment of an Independent Children's Lawyer would become necessary if the litigation were to continue.

22. Of course, all of the above needs to be balanced against the benefit to B of allowing the litigation to continue. If it is successful, according to his father, his father would know about him and this would form the basis for a future relationships. It seems implicit that there is no meaningful relationship at the moment. Does this benefit outweigh the disadvantage and possible harm to B of allowing the litigation to continue? I believe it does not. It is more important to protect B from the adverse consequences of allowing this litigation to continue. I make this decision reluctantly, particularly as I suspect it is the mother's use of litigation that poses the greatest threat to B. Nonetheless, the reality is that she is responding to the father's application.

23. I dismiss the father's application. I will also make supplementary orders designed to notify any future judicial officer dealing with an application in relation to B that I dismissed the father's application, based on Rice v Asplund principles and that I have published my reasons for doing so.

24. I will also order that if the father does commence further proceedings in relation to Bin this Court, those proceedings are to be listed before me or transferred to me so that I might be able to expedite dealing with any such application.
dad4life said
This judgement, by Tom Altobelli, that invokes Rice and Asplund to dismiss the father, is disappointing because it is difficult to see how providing the father with copies of the child's school reports could really negatively affect the child (except by deliberate action of the mother), as Altobelli suggests:
At first glance it would appear that Dr Tom has gone against his normal practices. However it is very clear that he has used Rice and Asplund to try to end the ongoing litigation between the parents. The 'school reports' were used by the Father to re enter the Court system which shows the animosity between the parents. These could have been dealt with as a 'fine tuning' issue.

The use of school reports has unfortunately been a common tactic by some Fathers to 'attack' parenting by the Mother. There have been judgments that restrict or prohibit reports going to the other party for this reason. Perhaps Dr Tom reading 'their' extensive litigation history sees a similar pattern developing or the pattern already existed.

Note that as part of his decision whilst neither party has been declared 'vexatious' they cannot re enter the system without this judgment being considered.

Clearly the Court wants an end to the litigation between the parents.

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

Dr. Tom still a good guy and an olive farmer!

Have to agree with the mighty Mr. Agog! If you read between the lines, it is clear that Dr. Tom has used Rice & Asplund to stop any further court action, including this one.

There are many judgements out there that mention school reports being used as a control tool and/or a weapon.

Dr. Tom did the correct thing - this time!

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

Children of Warring Parents Descend Into Hellish Words

It would appear Tom Altobelli and Anne Kass (both "family law" judges) both went to the same school … of excluding one parent (typically the father).
Current research data reveal that in custody disputes between fourth-circle parents, the least destructive solution is often for the court to essentially eliminate one of the parents from the lives of the children.
I fail to see though, how providing the excluded parent will exacerbate the conflict and hurt the child, unless the custodial parent (typically, and in this case, the mother) causes the child to know about it and thus consciously and deliberately sets out to upset the child (possibly with a view of alienating him from the father).

http://www.alllaw.com/articles/family/child_custody/article16.asp

Children of Warring Parents Descend Into Hellish Words
By Anne Kass

In Dante's "The Divine Comedy," he created and described nine circles of hell.

I have identified four circles of hell–hell for the children of the warring parents.

In the first circle, we find two parents who are temporarily dysfunctional due to the stress, and trauma of the divorce. These parents need and respond to a little help and information about their destructiveness.

In the second circle, we find parents who suffer more severe dysfunctions. They need more intense therapy from mental health professionals.

If therapy is successful for these second-circle parents, they too can be successful as separate parents.

If the third circle, we find parents who are unwilling or unable to learn from therapy, and who do not stop the conflict. The only possibility for their children to survive the break-up is for them to learn coping skills through therapy.

Then there is the fourth circle of custody hell: parents who resist all the efforts of peacemakers. They refuse to participate in therapy themselves, and they subvert therapy for the children. They continue to harass one another in the courts, and they demean one another to the children. They are "hostility junkies," locked into anger.

Current research data reveal that in custody disputes between fourth-circle parents, the least destructive solution is often for the court to essentially eliminate one of the parents from the lives of the children.

Anne Kass is a District Judge in the Second Judicial District State of New Mexico.
Interesting categorisation and discussion of the idea that to NOT make a GOOD decision is based on circumstances (continuing BAD decision) hasn't changed. e.g. children stuffed now - let it continue (i.e. child when 17 says to Dad - where were you when I was going through school - why didn't you help me do better?)

If judges could be less clever and more wise maybe all categories would be served better.

 Maybe I am not explaining myself well enough
I love the phrase "warring parties". It assumes that there is equal buy in. If my partner's ex had signed a parenting plan 2 years ago I would not be going through vicarious hell.

It really is hell, I don't know how many circles, and the only hell the child is subjected to is ongoing alienation tactics from his recalcitrant mother.

Personally, I would happily put needles in my eyes if it meant that all this would all stop.

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. 

r&a

in my opinion rice & asplund is an excuse to cut the quantity of litigants due to the fact that the courts are allready stretched and limited in funds, example

a father has contact every second weekend and half of school holidays, what makes him different to the other dads that he cannot apply to also have 50/50 contact  - when you hear rice & asplund consider the real factors, that the system needs reform!!


Rice and Asplund is a very old precedent originally used to prevent continuous litigation - the reason that it has been more 'invoked' since changes to the ACT are; as you point out to prevent an avalanche of litigation.

Even without the R & A 'brake' Court delay times have blown out in all registries since the Amended Act was introduced.

The SPCA and SRL-R have been working on an R&A submission for the AG. He will be receiving it at a meeting he has with them.

How frequently do you think people should be allowed to return to Court?

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
My last appearance in court was a Rice & Asplund issue so this issue is close to home.

I agree with you my sentiments exactly. My lawyer made decisions for me that took me a while to recognise were wrong! He basically set me up.

I would think that one should be given three goes at it, to fine tune the orders before R & A is mentioned.

That I believe would be fair. Note the 50/50 rule.

Three go's? -so who is going to pay for tripling the Courts capacity?

Whats the 50/50 rule?

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
I think there should be a threshold, but there should be a simple, consistent checklist where the FRCs or registrars could be gate keepers and say "go away" to those who are being frivolous.

For those who are being frivolous through ignorance, a checklist would discourage them as they would self-select out.

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. 
And that is what the submission to the AG is all about - defining the 'undefinable' - except that it has been defined in many judgements.

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