SA Query about Rice & Asplund?

[okanynameyouwishthen]

Hey guys,

Hoping some member may have past experience with similar situation & trying to work out if rules, reg's and legal principles have been determined as an optional extra to use if and when it suits.

OK, after protracted litigation-parenting orders, one such hearing produced a "self executing order"- It wasnt termed that by anyone but research threw up that term & it seems to describe this order. As in, orders pronounced had a condition to satisfy and when that condition was satisfied then it allowed a following condition to kick in automatically-seems to fit the type of orders, I think.

Anyways, that second condition was to see the child, which ex will do, say & be whatever to stop, block, deny, withhold that from happening. The ICL involved who sent ex letter of Mr...dude has done the condition 1 on order xyz, so letting you know you're expected to deliver the child up 2 hand-over in a couple of days as per order blah blah.

Ex didn't like this and sent ICL & me a letter following day basically saying get stuffed I'm running the world remember so no we are not going to deliver child up. Don't care what order says that's wrong we think it should've said this so we're going to file urgent application to vary order by slip rule.
To me it seemed no different as in I didn't like orders delivered at some point in this ordeals history & it was oh well suck it up or hurry up & kick off appeal process within 28 days.

Ex's mob were outside this timeframe & didn't appreciate my commenting that they had 2 barristers an ICL solicitor present in court day orders pronounced, plus ex's solicitor additionally involved as probably 5-6 letters between everyone were sent around in the couple of months between pronouncment of orders and satisfying self executory order & ICL's couple mentioned the conditions of orders xyz that state as soon as Mr dude does this than child is expected...

So yeah 2 barristers & 2 solicitors that are all either pretty lazy at reading docs. thoroughly or 2 lazy to file appeal in 28 days window, either way not child's or mine fault for their combined incompetence & hell no we shouldn't have to wait til your urgent application is heard in 3.5 weeks time.

So short of going to ex's screaming and waving my binding orders around & dragging child from there to come hang with me, which no way was I so muppet man kicked fair in the nads again basically & missed out 2 visits with child-DVO'd !

3.5 weeks later we head back to court only ex's barrister there and no ICL barrister( these 2 usually the 2 tweedles every other hearing) & barristor man toned down his ". I'm gonna wipe floor with you ya non legal gimp" attitude considerably & refrained from long winded ramble as if trying to quietly sneak this " back door appeal" through.

I jumped up in protest and ignorant bliss & challenged usage of slip rule & didn't consent & judge actually said she couldn't use the slip rule because she listened back to recording and what she said was what was written in order. I'm saying the order was perfected, recorded, & by the self executionary part being satisfied by the action required-spent order.

Now should that have been OK off ya's go now or am I right in believing I've been stitched up so as these elites don't give an inch to the SRL dad as the hearing went on & resulted in the variation the ex's barrister wanted in order was indeed the result.

I dead set have had a gutfull & admit I feel they collude and help each other here and there & turn blind eye to raft of rules, professional standards....you name it. But I'm open to opinions cause I'm reading this crap so much it gives me headache & asleep legs from time in chair but to me if he failed at using slip rule then orders aren't to be touched unless he satisfies Rice & Asplund threshold?

Sorry for novel length & hope it makes sense to others but I'm very very interested to hear what people reckon should've happened. Me, I can't shake the dirty grubby feeling I've been royally shafted & my legal rights & equality before the law status got yanked down & ended up around my ankles with my Y-fronts .

No haters or spelling nazi's please. Peace out!

 

[Rod]

On what basis did the judge allow the change?

You may be able to appeal if the required threshold was not met or fresh material was used.

 

[okanynameyouwishthen]

Child's best interests. Infuriatingly little angel's b/day the following day. They came in with just that

"We seek vary orders as we don't think that's what the court intended". If they tell the judge we want it changed as we don't believe that's what you meant & judge says.

"Well no the orders are what I pronounced, so no slip".

They had no other evidence just affidavit listing the mothers "concerns"-ala 'sympathy101', reporting the letters exchanged between who & who & on advice of her legals she wasn't prepared to allow visits.

I filed updating affidavit provided some extra backing evidence, asked about my filed contravention of orders matter that'd been on hold for near 5 months, trying to reprioritise hierarchy of proceedings hearings, pointing out shes more or less in contempt of court yet comes back in to same court , leap frogs my 5month waiting cont. of orders matter & wants diff. orders to those her & her legals could of objected to when delivered or the 28 days after via appeal.

Oh yeah & also the self-executing orders were resulting from my filed application in case that they response to listed " any other order court deems fit", & pointed out that that's what they got. Been a SRL for near 4 years & no love lost between me & her legals. I pity the ex & loathe her legals & they made it not about child long time ago. 1 thing really bugs is this only time ICL barrister never attended whereby some time back she turned up "as a courtesy to the court", that's how into she is as pigeon pair with ex's barrister.

Say if she was there & I raised objection to what I feel was circumventing the appeal process to cover up the shoddy inattention to detail from the legals, & I submitted I was led to believe to touch the now spent orders and ignore finality of litigation principles, they needed evidence & better than mine & to Rice & Asplund threshold would that barrister be obligated by duty of honesty, professional standards , model litigant model principles(legal aid) to jump in & offer up authoritative cases etc. even if unhelpful to her mate -ex's barrister ?

I know I'm more mental than 4 years ago but ex's barrister wasn't his usual cocksure- self, theatrical, joking with judge,smirking at me & as stated very unusual his running mate wasn't there for this hearing only. Suss as!

 

[Rod]

Hmm, based on your post, I'd be getting some legal advice from an experienced family law lawyer. Maybe spend 2 or 3 hrs running through your options at this point would be good value. Not sure anyone here without seeing the paperwork can help. You seem quite knowledgeable as a SRL and might only need some pointers on what to do next.

 

[Kristy Howell]

Hi,

I am a lawyer (browsing from the other side) but these comments shouldn’t be taken as specific legal advice because your case analysis although entertaining doesn’t provide enough specifics... so with that out of the road...

I agree with Rod, your matter has now hit upon some technical complexities (you are correct about Rice and Asplund if they were final orders).

You should invest a small amount of money is seeing a lawyer just for advice on the matter as it stands now and then if you are correct then you can lodge an appeal because you did say the judge indicated the rule was written as said in the transcript (this won’t apply if the matter isn’t finalised or they are interim Orders because they can be amended)

However, a couple of things you have misconceived (I believe)

Because the last time the matter was in court was an appeal (assuming after the final orders hearing) the ICL may not have had an obligation to attend (and even with one no funding from legal aid). The appeal is a new court process so the ICL needs to be informed and apply for funding if their services are required.

I would never discount collusion between lawyers, it happens we know each other sometimes however in my experience ICL’s are very busy but also very dedicated to the ‘welfare’ of the outcome, I would find it difficult to believe an ICL was siding with a. Party over a technical breach after final orders had been made.

The other thing is although you seem well versed in the happenings of the court the fact you don’t have legal training (and sometimes even if we do we still miss things) but you may have missed a technicality or opportunity or not expressed something correctly.

As for the barristers theatrics....Barristers are extremely well trained in fact I believe part of the Bar cour must include acting classes even a really nice Barrister I work with brings out his best theatrics if required during a trial or hearing yet other times is as common as grass.

 

[AllForHer]

I find your post quite difficult to follow, there seems to be a lot of rambling about solicitors and barristers that seem to be irrelevant, but from what I can gather, you met Condition 1, ex was advised of same and was therefore expected to abide by Condition 2, ex refused to do so, so in either an interim hearing or filing for new proceedings, the orders were changed in the ex's favour. Is that right?

What should have happened was you let the ex contravene the orders, then you file an application for contravention orders. I don't know what is driving the nonsense about appeals, slip rules and legal principles. She contravened the orders, you file for a contravention order. Simple.

 

[Lennon]

I don't understand how this is related to Rice & Asplund?

 

[okanynameyouwishthen]

I'm a SRL up against a couple of lawless rogues. I'm asking if the hearing I described should have been conducted and needing to satisfy the Rice & Asplund threshold in order for these 2 to be able to p*ss about with the orders that I had satisfied conditions in & rendered them spent. The orders were spent because I done what was asked of me.

Other side held the view that I hadn't satisfied orders, how they believed the orders were meant ( this sounds more insane than it did when active). They tried to reintroduce the orders that I had made spent( those orders were no more), They tried to do this using the slip rule and were told they couldn't.

I believe a truly impartial judge wouldn't have then said - he's done what the orders asked him, no you can't resurrect spent orders under slip rule - application to do so is dismissed - end of! But she didn't.

Right when she should've said dismissed, and moved on to my already filed contravention (different issue) that had stood adjourned for 5 months or if no time left sent us away. Ex's barrister just rambled on & on from there bullying me back into my seat & the end result was the orders they wanted and attached with this application is exactly what the result was.

I'm asking how could they? They couldn't get their orders under the slip rule. How then? They've held a rehearing that was the same as 2 months before that produced the orders that I made spent & that they had a problem with (so!). You can't just file to have a hearing to change orders that you don't like all of a sudden & instantly check calendar & count the days to realize 35 days have passed making you 7 days over the 28 day period that you had to challenge the orders that .

That means you can't appeal so tough luck. Should've paid more attention to what was going on, when the orders were pronounced or ya lawyers should've read their mail closer as they would've detected wrong orders that they didn't like & appeal. So once slip rule has been taken away as an opportunity. I believe you're in the position of if you want the orders resurrected so much, you must satisfy the Rice & Asplund threshold of enough change has occurred since orders delivered until now.

If you can't, then that's the end of argument. Isn't it?


Thats gotta have nore explained it.

 

[Lennon]

I think you'll have better success at explaining your situation if you avoid recourse to terms such as "lawless rogues" and just tell us what orders were made initially, and what orders were made at the next appearance (including whether, for example, the orders are final or interim).

 

[sammy01]

Alright, no haters or spelling Nazi's fine...But the theatrics of your first post make it hard to understand what it is you're asking...

so help us out... What specifically were you asked to do? drug tests? psych assessment? anger management course? and you've been asked to do them again??? My advice, what ever you have been asked to do.... Do it again... You can fight the system appeal everything and spend years proving that you're right the system is scewed, they have colluded the magistrate is corrupt what ever.... And all the while you're child is growing up without you... OR you can spend your time doing what ever the they tell ya to do and when they tell you to do it again you just do it.... YES SIR... WHY? well what is more important? proving that you're right and the system is screwed OR spending time with your kid