Marsden and Marsden

In *Marsden & Marsden* [2011] FamCA 991, the Family Court of Australia considered an application by the father, Mr Marsden, alleging that the mother, Ms Marsden, had contravened specific parenting orders made on 3 February 2011. The orders primarily stipulated that the parties' three children live with the father and spend time with the mother on alternate weekends, and included provisions regarding counselling, communication with services, compliance with recommendations, and prohibitions against denigration and physical punishment of the children. The father alleged three contraventions by the mother.

The legal issues before the court were whether the mother had contravened orders 18 (prohibiting denigration) and 9 (requiring compliance with counselling recommendations) on the dates specified by the father, and whether she had contravened order 19 (prohibiting physical punishment) by allegedly punching their son, M, on 16 October 2011. The court was required to determine if the father had discharged his onus of proof on the balance of probabilities for each alleged contravention.

Justice Stevenson found that the father had failed to establish contraventions of orders 18 and 9. Regarding order 18, the court found the father's evidence insufficient to identify specific denigrating statements or actions by the mother on the alleged date, and that evidence concerning other alleged incidents was either not linked to the specific date or lacked sufficient detail. For order 9, the court noted the absence of admissible evidence that the mother had failed to comply with any specific, reasonable recommendations from a counsellor, and that the date of the alleged contravention was not specified. However, concerning order 19, the court determined that the father had established, on the balance of probabilities, that the mother's conduct could amount to a contravention, particularly in light of the child's statements and the hospital discharge summary noting bruising.

The court then considered whether the mother had a reasonable excuse for the contravention of order 19. The father's application was ultimately dismissed, and he was ordered to pay the mother's costs of and incidental to that application.