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Father entitled to a rehearing due to error in Rice & Asplund finding

Consideration of Rice and Asplund  
13 May 2008
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.


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