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Seeking Rice & Asplund recent case examples

Discussion relating to the requirement for case law in R&A. It is not just a matter of successful R & A cases - but more importantly cases that relate to your own set of circumstances.

In another topic area…
Vangorp said
I have made 2 submissions to the NSW Woods Inquiry on DoCS in the last week, and have also copied them to the Minister. This was out of frustration with DoCS, trying in vain to get them to remove my kids from their mother's neglectful care and into a shared care environment with me, after my 3 year old ended up on life support for 3 days due to undiagnosed pneumonia".
Without the full details it is difficult to make informed comments, but the argument 'remove from the Mothers neglectful care into a shared care…' is contradictory. Does this mean that you only want the Mother to neglect them half the time? Or that by having shared care the Mother will stop neglecting them? Can you understand the pitfalls of this argument?
Vangorp said
On the Rice and Asplund (R & A) issue, can anyone give me the names of a recent case or two where the R & A test was met and a hearing resulted in the father getting a  favourable variation in previous orders?
It is not just a matter of successful R & A cases - but more importantly cases that relate to your own set of circumstances.

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, I would recommend that you search the austlii database and find the R & A cases that are close to your circumstances.

This is what I do.

This way you get the most relevant cases and you will be a lot more familiar with these judgements, which you will need to be if you are going to quote them to a judge or FM as an SRL.

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. 
On the question of neglect, what I mean is that in a shared care regime in Sydney , rather than them living with their mother in the bush, I will be able to monitor the children sufficiently so that their mother's neglect won't be life threatening, as it was in the recent incident. Isn't that logical and reasonable?

Material Change in Circumstances

Hello vangorp.

I myself have been kicked in the guts by 'Rice and Asplund'.

This info I am posting is what the magisrate wrote as requirements needed to pass the "material change in circumstances".

They include:

a) marked adverse behavioural changes in a child;

b) remarriage and recovery from illness of a non-live with parent;

c) remarriage and stabilisation of accomodation of the non-live with parent and commencement of school by a child;

d) remarriage of the non-live with parent, enabling that parent to provide a proper family environment;

e) child sexual abuse;

f) relocation; and

g) contravention of orders.

These are the ones I know of, there are possibly more - see if any here can relate to your situation, that is a start… GOOD LUCK!

vangorp said
On the question of neglect, what I mean is that in a shared care regime in Sydney , rather than them living with their mother in the bush, I will be able to monitor the children sufficiently so that their mother's neglect won't be life threatening, as it was in the recent incident. Isn't that logical and reasonable?
vangorp

No I do not believe your argument is logical for the following reasons:

You want the Mother to relocate back to Sydney.

You are saying the Mothers neglect can be life threatening but you still want her to have shared care and magically this will make the neglect non life threatening.

You can monitor the children? or the Mother?

So what circumstance have changed? DOCS have become involved and done what - sweet FA!

Sorry I am not going to sugar coat any pills until you provide more details that could build into a workable case.

Read the site information page and have a browse around the site just to see how to keep your material private.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
monaro said
I myself have been kicked in the guts by 'Rice and Asplund'.
monaro

In all honesty 'you' presented yourself to the Courts for a kick in the guts.

You should realise now why our people are trying to help with your current situation.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
It is absolutely essential you understand what Rice and Asplund is all about. It is no good looking for a successful case. You need to look at your own circumstances and test "has there been a significant change?" Let me also say that the Federal Magistrates seem to use a lot of discretion in these matters. I have been informed first hand by the deputy chief justice of the Family Court that they would rather see a case and test it than not.

Best interest of children override the Rice and Asplund provisions.

Read the over 120 posts here on the Portal in the Forum Search on Rice and Asplund. There is a lot of good material here. You do not need to go to Austlii for the moment.

Follow up Docs daily in the meantime, If the situation is as you say then having half the time will not make these children any safer. The children must be looked after first. What is teh level of neglect as I understood your ex had moved in with her family (parents)? Case details must only be provided in closed secured forums. If you are an SRL-Member you can post within the closed area and it will be moved to an executive secured forum.

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
 
Thank you for the responses to my questions. I have used lawyers in the past and lost every round of litigation , so I'm probably going to represent myself in my next application for variation due to changed circumstances…. more of the same will only get me more of the same. Does that mean I can become an SRL member? I will look on the site to see how to do it, so I can give my case details in the closed section.

In the meantime, I've read the decision by Warnick J in SPS and PLS in which he very nearly kills the R&A principle as I read it, as follows:
"In some cases….it is not easy to determine the threshold question without going into the merits of the matter…if the judge comes to the conclusion that a change of custody is warranted in the interests of the child, then it would be unthinkable not to give effect to such a conclusion on the basis that no change in circumstances have been shown."

Do you agree this is pretty dramatic in watering down the strength of the R&A principle?
R&A is very subjective and seems to be very much at the discretion of which judge/FM you get assigned to your case.

Of course, if you can mount a case, structured to support all your argument, so much the better.

Take, for example, time has passed since the orders were granted. How much time? Is 3 years enough, is 5 years enough?

Perhaps, if the children had not started school when final orders were granted, 3 years would be enough.

Perhaps more than 5 years would be required.

One would think the transition from primary to secondary would be sufficient. No, I have seen judgements that go against that….

A wise move to join the SRL.

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. 
vangorp said
Thank you for the responses to my questions. I have used lawyers in the past and lost every round of litigation , so I'm probably going to represent myself in my next application for variation due to changed circumstances…. more of the same will only get me more of the same.
Or do you mean more of the same but at less cost.
vangorp said
Does that mean I can become an SRL member? I will look on the site to see how to do it, so I can give my case details in the closed section.
Anyone is able to apply. The SRL-R people are overloaded with a giant raft of current cases. If you are thinking about going to court for more of the same (ex ante) you may not find too much help available. When time and resources are in short supply a 'MASH' triage situation applies.
vangorp said
In the meantime, I've read the decision by Warnick J in SPS and PLS in which he very nearly kills the R&A principle as I read it, as follows:
"In some cases….it is not easy to determine the threshold question without going into the merits of the matter…if the judge comes to the conclusion that a change of custody is warranted in the interests of the child, then it would be unthinkable not to give effect to such a conclusion on the basis that no change in circumstances have been shown."

Do you agree this is pretty dramatic in watering down the strength of the R&A principle?
Unfortunately it is only a single one in a multitude of R&A 'uphelds'. With the introduction of the Amended Act in 2006 the AG made it very clear that Rice and Asplund was very much part of the landscape and would be more rigorously implemented to prevent an avalanche of new applications.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
Can you tell me a bit more about the submission you are discussing with the AG soon?

If he accepts your arguments and takes the action you ask for, what will be the practical effect and in what timeframe?
I doubt whether the Secretary of the SPCA will be able to go into much detail but suffice to say any responses and possible changes will take many months if not years.

The submission was the result of a great deal of burning both ends of the candle with SRL-R supplying what might be called the front line material and the SPCA supplying their 'views' on the Amended Act and their close involvement with the Amendments.

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

Rice & Asplund, Public Policy, Rules of Evidence, Expert Witnesses, SRL, Mental Health, Alignment, etc

Hi There.

You must check out the new first instant judgement of BELL J posted on the Family Court web site in the Matter of J & B [2008] FamCa 184. The decision reversed previous arrangements with the Applicant Father gaining full residency orders. The Applicant father successfully overcame the A & P hurdle.

Also raised was the issue of Public Policy and Estoppel.

It's a must read for ALL SRL's. It's a long read but worth it. Check it out.

Attachment

4MYDAUGHTER
I've read Bell J in J & B. It's very motivating for me, but I'm sure it will be appealed don't you think?

The aspect of it I found most exciting apart from overcoming R&A, is that in the do novo hearing the findings made by the first judge about the parties no longer count in the new hearing.

That means any bias the first judge had is removed from the equation, do you agree?

Can I file a Notice to Admit Facts in a Family Court LAT hearing?

Firstly, I am far from being an expert these areas.

With regards the hearing de novo - yeah, it appears that BELL J is not bound by findings of fact in previous cases. After all, it was a 'NEW' application and not an Appeal.

It appears that the Respondent Mother had the opportunity to introduce evidence she produced in the previous cases, but chose not to.

As far as an Appeal goes, I am not sure on what basis she would have grounds for an appeal. J Bell gave her - an SRL - plenty of guidance throughout the hearing. Then again, what would I know?

I do have a question for anyone out there who may have the answer:

Can I file a Notice to Admit Facts in a Family Court LAT hearing? The FMC has the form available for download on its web site, but the Family Court does not. Does the absence of the equivalent FC form mean that I cannot file this Notice in my FC LAT matter?

4MYDAUGHTER
How 'bout this…
Existing Orders state once the child finishes primary school in Canberra (where she lives with the mother) the child will relocate to Sydney and reside with the father and attend a school there for secondary schooling.
The mother ends up having to leave Canberra and relocate to Brisbane while the child is in grade 3.  The father consents because the move is a result of the mother's second marriage breaking down.
The mother has moved in with her parents in Brisbane.
The mother then re-partners in 2006 and wants to move out of her parents and in with her new partner and purchase a home together but can't afford property near the current school.  The mother also has the family dog because the father didn't want it, so she is limited to 'houses' rather than apartments.
The mother negotiates with the father to agree to allow the child to be moved - he agrees but states that it has to be an 'inner-city' private school.  
The mother tries to find affordable property near an inner-city private school and thinks she has when she purchases.  After a few weeks it becomes apparent that the long commute is made impossible by the degree of traffic congestion.  She tries everything to find a solution but is forced to move the child to a public school.  The public school becomes unsuitable as the child is bullied there (she's gifted) so the mother starts home-schooling and begs the father to allow her to move where the property is affordable, she has a chance of employment and there is a good private school still close enough to enable the child to fly to the father in Sydney.  He refuses.  They eventually compromise on the Gold Coast and she moves into property there she can't really afford and the child is enrolled into a school while they await an available place at the school the father wants the child to attend.
After a year there's a place at the school the father wants.  The mother moves again to be close to this school and the child starts there.  After only one term there is a huge issue with the teacher at the school (in fact several parents are pulling their children out of that school for this reason) and the mother takes the child to an educational psychologist for advice.
The psychologist privately states that the child needs to leave the school but won't put it in writing.  The psychologist tells the mother that he's also told the father this verbally but won't put it in writing.
The mother is offered an excellent job in her choice of 3 locations, one of which will not affect the child's level of contact with her father and which as affordable property and an excellent private school available.
They have not been following the existing orders properly since around 2005.
When the mother moves in September 2010 without consulting the father (because she knows he'll oppose it) he threatens to enforce the existing orders by forcing the child to attend school in Sydney from the start of 2011.
The mother is arguing there've been significant changes since the July 2004 orders were signed.
The assumption in July 2004 was that the child would remain in Canberra for her entire primary school years and that the mother would be able to move to Sydney at the commencement of the child's secondary schooling…but her divorce from her second husband has meant she's not financially capable of this anymore.  The child is now (2 months down the track) settled in the new school, is almost 13, has a few new friends, has pets and is stating they want things to 'stay the way they are'.
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