Mother moves to Adelaide - Court orders Children stay in Sydeny:
I am trying to get my kids brought back by applying for a variation of the orders that allowed them to be kept in the bush by their mother after she legally abducted them there.
I have to show changed circumstances under the Rice and Asplund principle and get the case reheard under the new laws post the 7/06 amendments. ie. ask for shared care which requires them to live in the same city as both parents, so she would have to move back to Sydney.
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".
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?
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?
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.
Should I post these 2 submissions on this site, after removing my family names?
On the Rice and Asplund 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 thefather getting a favourable variation in previous orders?
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.