When there is a dispute about the value of an asset in your property pool, it may be prudent, if not necessary, to obtain expert evidence from a valuer.
The most common valuations undertaken in family law proceedings are real estate valuations, determining the value of the former matrimonial home or other properties owned by either of the parties, either jointly or separately, or business valuations for one or both of the parties’ businesses.
In other cases, an expert opinion may be required if an issue lies outside of the experience of the Court. To name a few, these could include; special tax implications of disposing or transferring an asset in international jurisdictions; remuneration specialists in analysing party’s earnings and their income/earning capacity; and structural integrity of the home which will affect the market value of the home.
Although Courts may be inclined to consider, if not accept, the Expert’s report, there are rules that guide both the expert and litigants, if the Court is asked to rely upon the Expert report. Presently, until the Rules for the Federal Circuit Court of Australia and the Family Court of Australia are amalgamated, there are separate Rules governing these Family Law Courts.
The purpose of these Rules is to ensure that primarily:-
- experts are only engaged where there is a significant issue in dispute;
- the evidence is prepared in a manner which the Court can rely upon; and
- the parties avoid unnecessary costs of appointing more than one expert witness.
Family Court of Australia
In simple terms, the Family Court of Australia only allows the parties to jointly appoint a single expert for a particular valuation issue in question. Once appointed, a party may seek leave for the appointment of an adversarial expert, or to rely upon adversarial evidence to put the single expert evidence into question.
However, this can only be done with Court’s permission. In the matter of Bloxham & Bloxham (No. 3)  FamCA 70, Dorter Family Lawyers & Mediators were successful in defending an application seeking to rely upon an adversarial report. In that case, the parties’ interests in a business were sold (in conjunction with other business entities). The Applicant Husband was unsuccessful in obtaining permission to rely upon this valuation report because:
- the report was not a single expert report;
- there was no single expert appointed to value the parties’ interest in the business and therefore the report could not be relied upon as an adversarial Expert; and
- the issue of a valuation of the parties’ interest in the relevant corporate entities, at a date 12 months after separation, and at a date 12 months prior to the sale of those interests, at market value, was not necessary for the resolution of these proceedings.
Federal Circuit Court of Australia (‘FCCA)’
The FCCA allows for a Court-appointed Expert for children’s matters and adversarial experts to be appointed in other matters. However, it is common practice that a Single Expert is appointed to minimise the costs and time in engaging multiple adversarial expert witnesses.
Dissatisfied with the Expert Report?
In circumstances where a single expert is appointed through joint instructions, you may feel like you are bound by their opinion presented in their report. However, you are entitled to ask questions to clarify the report within 21 days of receipt.
In the event the expert proffers an opinion outside of their expertise, and/or fails to consider relevant information, and/or has made assumptions that should not have been made, the expert’s opinion can be tested through the cross-examination process at a Trial.
Do you have valuation disputes in your financial settlement and require expert advice?
To obtain specialist family law advice in all areas of family law, including obtaining and disputing expert evidence, contact our expert family lawyers at Dorter Family Lawyers and Mediators on (02) 9929 8840 and we will assist you.