HELINSKI and BASSETT - [2021] FCWA 244

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: HELINSKI and BASSETT [2021] FCWA 244
CORAM: DUNCANSON J
HEARD: 16 NOVEMBER 2021
DELIVERED : 22 DECEMBER 2021
FILE NO/S: 451 of 2019
BETWEEN: MR HELINSKI
Applicant
AND
MS BASSETT
Respondent

Catchwords:

PROPERTY - expert evidence - where a single expert witness has been appointed - where the respondent seeks permission to rely on a report of another expert - instructions to the single expert witness - conferral ordered

CHILDREN - where the report of the single expert witness has been published - where the applicant seeks to vary existing orders - where a cautious approach is taken to changing the children's arrangements

Legislation:

Family Law Act 1975 (Cth)
Family Court Rules 2021 (WA) Div 5, r 268, r 271, r 274, r 277, r 290, r 291, r 292

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr R Hooper SC
Respondent	:	Mr M Berry SC & Mr J Fickling

Solicitors:

Applicant	:	KDK Family Law
Respondent	:	O'Sullivan Davies Lawyers

Case(s) referred to in decision(s):

Marvel v Marvel (2010) 43 Fam LR 348
Simonsen v Simonsen [2009] FamCA 698

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Helinski and Bassett has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1These proceedings concern the division of the property of [Mr Helinski], the husband and [Ms Bassett], the wife. They also concern the parenting arrangements for the parties' children.
2On 9 April 2021 the wife filed an application in a case seeking various interim orders with respect to financial matters. The husband filed a response on 20 May 2021.
3On 20 October 2021 the husband filed an application in a case seeking interim parenting orders. On 2 November 2021 the wife filed an amended application with respect to financial matters. She filed a response on 12 November 2021 in relation to parenting matters.
4The parties relied on various affidavits filed in support of their applications and also their trial affidavits. Senior counsel for both parties filed an outline of submissions prior to the hearing on 16 November 2021.

BRIEF BACKGROUND

5The husband was born [in] 1979 and is 42 years of age. He is a [businessman]. The wife was born [in] 1978. She is 43 years of age. She is a [doctor].
6The parties commenced cohabitation in 2007 and married [in] 2010. There are two children of the marriage, [Child A], born [in] 2012 (nine years of age) and [Child B], born [in] 2015 (six years of age).
7The children live with the wife and spend time with the husband.
8The parties separated finally in mid-2018.
9The husband commenced these proceedings on 15 January 2019 in relation to parenting matters. He subsequently amended his application to seek financial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read HELINSKI and BASSETT and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FCWA 244
Decision Date: 22 DECEMBER 2021

CaseChat Overview and Summary

The appeal was heard by the Family Court in Australia, involving Helinski and Bassett. The primary issue was the admissibility of expert evidence in family law matters, specifically whether the respondent could rely on another expert's report despite a single expert witness being appointed. Additionally, the case involved a request to modify existing orders concerning the children, considering the cautious approach the court must adopt in such matters.

The court considered whether the respondent could introduce evidence from an additional expert, despite the appointment of a single expert witness. The central question was whether the instructions given to the single expert allowed for the consideration of the other expert's report. The court also evaluated the implications of the single expert's report being published on the children's welfare and the merits of varying the existing arrangements.

The court found that the instructions to the single expert did not explicitly preclude the consideration of other expert evidence, but the respondent's request was not granted without further conferral. The judge emphasised the need for a cautious approach in altering children's arrangements, particularly when an expert's report has been made public. The court concluded that the respondent could not rely on the additional expert's report without a more thorough examination of the implications for the children's welfare.

The final orders directed the parties to confer and determine whether the respondent could proceed with the additional expert's report, subject to the conditions that any such evidence would be closely scrutinised for its impact on the children's best interests. The court maintained the existing orders concerning the children, highlighting the necessity for any proposed changes to be well-justified and in the children's best interests.

Orders