Marsden & Winch

The appeal involved Marsden, the father, and Winch, the mother, with the dispute centred on the parenting arrangements of their child. The Family Court of Australia heard the case, with the Deputy Chief Justice Faulks presiding. Marsden sought to re-litigate the parenting proceedings, arguing that the previous decisions were not in the child's best interests. He also contested the judge's refusal to disqualify himself from the case. The legal issues the court had to address were whether the judge's dismissal of Marsden's application to re-litigate the parenting proceedings was correct, and whether the judge erred in not disqualifying himself.

The court found that the judge did not misapply the "threshold" test from Rice & Asplund and that the decision to dismiss Marsden's application was contrary to the child's best interests. The court held that the judge's refusal to disqualify himself was justified, and no grounds for disqualification were presented. Consequently, the appeal was allowed, and the orders made by the trial judge were set aside. The matter was to be remitted for a re-hearing before a different judge, with Marsden required to file and serve all relevant material, including expert reports, before the hearing. The court also granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981, to be determined by the Attorney-General.