Marsh & Marsh

Case [2011] FamCA 193

FAMILY COURT OF AUSTRALIA

MARSH & MARSH [2011] FamCA 193
FAMILY LAW - DISCHARGE OF SINGLE EXPERT – Whether orders found in judgment were final or interlocutory – Whether doctrine of Res Judicata applies rendering application incompetent or otherwise - Whether the Court should allow the rehearing of the same issue – Principles for conducting child related proceedings
FAMILY LAW - COSTS –application for costs – Financial circumstances of the parties - Where application is wholly unsuccessful
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Evidence Act 1995 (Cth)
Russell v Russell (1999) FLC 92-877
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd ( 1995) 133 ALR 206
Hall v Nominal Defendant (1996) 117 CLR 423
Bass and Bass [2008] FamCAFC 67
Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454
O’Sullivan v Medical Tribunal of NSW [2009] NSWCA 374
Res Judicata by Spencer, Bower and Handley (4th edition)
APPLICANT: Ms Marsh
RESPONDENT: Mr Marsh
FILE NUMBER: SYC 3464 of 2009
DATE DELIVERED: 18 March 2011
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Le Poer Trench J
HEARING DATE: 24 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC
COUNSEL FOR THE RESPONDENT: Mr Lloyd SC

Orders

  1. Pursuant to Division 15.5.2 of the Family Law Rules 2004 Dr R prepare an updated report on matters relating to the welfare of L born … October 1999, and that in preparing the said report to the Court, the expert consider and report on the following matters:

    (a)       Whether L is at risk of being exposed to any psychological harm in the care of either parent;

    (b)       Any view expressed by L and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;

    (c)       The relationship between the L and each of his parents;

    (d)       The willingness and ability of each of L’s parents to facilitate and encourage a close and continuing relationship between L and the other parent;

    (e)       The likely effect of each of the parties’ competing applications about L’s living arrangements, if implemented;

    (f)       The capacity of each parent to provide for the physical, intellectual and emotional needs of L;

    (g)       The attitude to L and to the responsibilities of parenthood;

    (h)       Any other living arrangement that the report writer may recommend and the basis for that recommendation;

    (i)         The effect on L, if spending equal time, or substantial and significant time, with each parent having regard to parent’s current and future capacity to:

    (i)Implement such an arrangement; and

    (ii)Communicate with each other and resolve difficulties that might arise;

    (j)        The mental state of both parents as far as it relates to parenting issues;

    (k)       The special needs of the children;

    (l)        Any recommendation he may wish to make in relation to the regime of time L should spend living with each of his parents and any other provision he considers to be in the interests of L’s welfare; and

    (m)      Any other…

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AGLC
Marsh & Marsh [2011] FamCA 193
Case
[2011] FamCA 193
Decision Date

CaseChat Overview and Summary

In *Marsh & Marsh*, Le Poer Trench J considered an application concerning the welfare of a child, L. The proceedings involved competing applications by the parents regarding L's living arrangements.

The court was required to determine the specific matters to be addressed in an updated welfare report prepared by Dr R. This included assessing the risk of psychological harm to L, L's views and the weight to be given to them, the relationships between L and each parent, and each parent's ability to facilitate a relationship with the other parent. The court also needed to consider the likely effect of the proposed living arrangements, the parents' capacity to meet L's needs, their attitudes to parenthood, and any recommended living arrangements. Further, the court was to consider the impact of equal or substantial and significant time with each parent, the parents' mental states in relation to parenting, any special needs of L, and any other relevant matters.

Le Poer Trench J ordered that Dr R prepare an updated report addressing a comprehensive list of welfare considerations, as detailed in the judgment. The court also stipulated a process for the husband to propose additional topics for the report, with any disputes to be determined by the court. The majority of the wife's other sought orders were refused. The husband was ordered to pay the wife's costs of and incidental to an application filed by the husband on 9 February 2011.

Orders

Orders of the court

1.

Pursuant to Division 15.5.2 of the Family Law Rules 2004 Dr R prepare an updated report on matters relating to the welfare of L born … October 1999, and that in preparing the said report to the Court, the expert consider and report on the following matters:

(a) Whether L is at risk of being exposed to any psychological harm in the care of either parent;

(b) Any view expressed by L and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;

(c) The relationship between the L and each of his parents;

(d) The willingness and ability of each of L’s parents to facilitate and encourage a close and continuing relationship between L and the other parent;

(e) The likely effect of each of the parties’ competing applications about L’s living arrangements, if implemented;

(f) The capacity of each parent to provide for the physical, intellectual and emotional needs of L;

(g) The attitude to L and to the responsibilities of parenthood;

(h) Any other living arrangement that the report writer may recommend and the basis for that recommendation;

(i) The effect on L, if spending equal time, or substantial and significant time, with each parent having regard to parent’s current and future capacity to:

(i) Implement such an arrangement; and

(ii) Communicate with each other and resolve difficulties that might arise;

(j) The mental state of both parents as far as it relates to parenting issues;

(k) The special needs of the children;

(l) Any recommendation he may wish to make in relation to the regime of time L should spend living with each of his parents and any other provision he considers to be in the interests of L’s welfare; and

(m) Any other matter the expert considers relevant.

2.

In the event that the husband seeks any other specific topics be reported upon by Dr R he is to provide to the wife’s solicitors a list of such matters for the wife’s consideration. If there is dispute about any particular topic the husband may list the matter before Justice Le Poer Trench for determination of that issue.

3.

The balance of the orders sought by the wife in her minute of order set out in her Outline of Case document filed in relation to the hearing conducted on 24 February 2011 are refused.

4.

The husband is to pay the wife’s costs of and incidental to the application in a case filed by the husband on 9 February 2011. Such costs to be as agreed or if no agreement can be reached as assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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