MARSH & MARSH

The case of *Marsh & Marsh* concerned parenting orders for a child, L, born in October 1999. The dispute involved the mother's application to remove the child from Australia for extended periods and the father's time with the child. The matter came before Ainslie-Wallace J.

The court was required to determine the admissibility of an expert report concerning the child's relationship with his parents, and to make final orders regarding the child's living arrangements, international travel, and time spent with each parent. Specifically, the court had to consider whether the report's probative value was outweighed by the danger of unfair prejudice, misleading or confusing the court, or causing undue waste of time, pursuant to section 135 of the *Evidence Act 1995* (Cth).

Ainslie-Wallace J reasoned that the expert report, despite potential factual inaccuracies and the passage of time since its preparation, had probative value regarding the child's relationships with his parents at the time of its writing. The court found that the asserted grounds for exclusion under section 135, including unfair prejudice, were not persuasive. The judge clarified that "unfair prejudice" refers to the misuse of evidence rather than a forensic disadvantage. The court also considered the desirability of avoiding multiple interviews for the child and concluded that appointing a new expert for an updated report was not appropriate at that stage.

Pending further order, the court ordered that the child L live with the mother and permitted her to remove the child from Australia to New Zealand and the USA for specified periods. The orders also detailed notification requirements for the father regarding travel, outlined provisions for the father to spend time with the child both overseas and in Australia, and addressed the child's schooling and extracurricular activities. The court also discharged previous orders relating to family therapy attendance.