Sunday, 8 June 2008

Family Court and Federal Magistrates Court cases: changing children's arrangements

Usually, before an applicant can go back to court and say that there ought to be a changing to parenting arrangements when there have been orders before, the applicant has to convince the court that he or she has to overcome the Rule in Rice and Asplund (1979). There is nothing quite like seeing someone sail into court only to have their case hit the iceberg of Rice and Asplund.

Two recent cases have helpfully set out the rule and how it is applied in practice.

In SPS and PLS, Justice Warnick, sitting as the Full Court of the Family Court of Australia, has summarised the Rule in Rice and Asplund as:

In my view, reflection on the rule shows that:
(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.

Hibbins and Hibbins, Federal Magistrate Baumann had this to say about the practical application of the rule:
It is a common, I would say, usual practice for the issue of applying Rice and Asplund principles in this Court is dealt with as a preliminary issue “on the papers”. It seems to me that a docket system where the ultimate judicial arbiter deals with the proceedings at the first opportunity enhances a proper application of the rule. It cannot be a proper application of the rule for a person, as sometimes happens, to blandly assert that things may have changed and that if a family report is procured, that person is satisfied they will be correct. To some degree that is what happened in this case, but in my view this is akin to the “tail wagging the dog”.

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