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OTHONOS and COSTA-OTHONOS

OTHONOS and COSTA-OTHONOS

Case [2023] FCWA 5 16 January 2023

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JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975

LOCATION

: PERTH

CITATION

:	OTHONOS and COSTA-OTHONOS [2023] FCWA 5

CORAM

: TYSON J

HEARD

: [REDACTED]

DELIVERED

: 16 JANUARY 2023

FILE NO/S

: [REDACTED]

BETWEEN

: MR OTHONOS

Applicant
AND
MS COSTA-OTHONOS
Respondent

Catchwords:

FAMILY LAW - PRACTICE & PROCEDURE - Expert Evidence - Where orders were made by consent for the appointment of a Single Expert Witness to prepare an occupational health assessment with respect to the wife - Where the husband seeks the discharge of the Single Expert Witness and permission to appoint an expert other than the Single Expert Witness - Where the wife unilaterally obtained a neuropsychological report for the purpose of the proceedings without leave of the Court or the consent of the husband - Where the Single Expert Witness has relied upon the neuropsychological report - Where the parties are required to confer and appoint a Single Expert Witness for the purpose of preparing a neuropsychological report - Where the Court is satisfied the circumstances warrant the discharge of the Single Expert Witness - Where the Court considers the parties should confer and appoint a Single Expert

[2023] FCWA 5

Witness for the purpose of preparing an occupational health assessment of the

wife - Where the Court declines the husband’s application to appoint an

adversarial expert - Case turns on its own facts

Legislation:

Evidence Act 1906 (WA)
Family Court Rules 2021 (WA)

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant

Senior Counsel A and Junior Counsel A

Respondent : Senior Counsel B

Solicitors:

Applicant : Law Firm A Respondent : Law Firm C

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

Albert & Plowman [2020] FamCAFC 23
Bass and Bass (2008) FLC 93-366
Bowen & Williams [2015] FamCA 545
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Lambard & Lambard (No 4) [2021] FamCA 47
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Marcin & Marcin [2020] FamCAFC 85
Marsh & Marsh [2011] FamCA 193
McElhinney v McElhinney (2021) 62 Fam LR 624
Neil & Zang (2021) 62 Fam LR 432
Othonos and Costa-Othonos [2021] FCWA 142
Othonos and Costa-Othonos [2022] FCWA 16
Othonos and Costa-Othonos [2022] FCWA 189
Payne & Payne [2009] FamCA 1005
Saller & Danell (No 2) [2017] FamCA 712

[2023] FCWA 5

Simonsen & Simonsen [2009] FamCA 698
Sullivan & Tyler and Anor (2016) FLC 93-708
Swefford & Tarbell [2012] FamCAFC 80
Tsoutsouvas & Tsoutsouvas and Ors [2012] FamCA 521

[2023] FCWA 5

TYSON J

TYSON J:

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 Othonos and Costa-Othonos has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court's Reasons for judgment may be subject to review…

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.

Continue reading OTHONOS and COSTA-OTHONOS

Details

AGLC: OTHONOS and COSTA-OTHONOS [2023] FCWA 5
Case: [2023] FCWA 5
Decision Date: 16 JANUARY 2023

CaseChat Overview and Summary

The case of OTHONOS and COSTA-OTHONOS involved a dispute regarding expert evidence in family law proceedings. The wife had obtained a neuropsychological report without the leave of the court or the consent of the husband, which the Single Expert Witness subsequently relied upon. The husband sought the discharge of the Single Expert Witness and permission to appoint a different expert, while the wife argued against this. The court was required to determine whether the circumstances warranted the discharge of the Single Expert Witness and whether the parties should confer to appoint a new Single Expert Witness for the purpose of preparing a neuropsychological report.

The legal issues before the court included the authority of the parties to unilaterally obtain expert evidence without the leave of the court or the consent of the other party, the appropriateness of discharging the Single Expert Witness, and whether the parties should be required to confer to appoint a new Single Expert Witness. The court had to balance the need for expert evidence in the proceedings with the potential for unfairness caused by the unilateral actions of one party.

The court found that the wife's unilateral obtaining of the neuropsychological report was not in accordance with the orders made by consent and the directions of the court. The court also found that the circumstances warranted the discharge of the Single Expert Witness, as the wife's actions had potentially compromised the impartiality of the expert. The court held that the parties should confer and appoint a new Single Expert Witness for the purpose of preparing a neuropsychological report, ensuring that the process was fair and transparent.

The court made orders discharging the Single Expert Witness and requiring the parties to confer and appoint a new Single Expert Witness for the purpose of preparing a neuropsychological report. The court emphasised the importance of adhering to court orders and the need for parties to act in a manner that promotes the fair and efficient resolution of family law disputes.

Orders