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Expert Advice In Family Law

By 20 March 2019 Family Law

Adducing further expert evidence in family law proceedings

In property proceedings before the Federal Magistrates Court, an Order was made by the Court to appoint a joint expert to value a block of land.  Following the release of the joint valuation, the husband disputed the value based on the significant difference in value between the jointly appointed valuation and an earlier valuation obtained by him.  The difference in value was $210,000.00.

Due to this dispute, a conference was held with the legal representatives, the joint valuer and the husband’s valuer.  This conference did not resolve any issues.  Consequently, the husband filed an Application in a Case and supporting Affidavit.  This Application sought the Court’s leave to adduce evidence in the Court other than the evidence of the jointly appointed Court expert (in accordance with Rule 15.12 of the Federal Magistrate CourtRules 2001).

When the Court considered this Application, the Court also considered Part 15.5 of the Family Court Rules 2004 since the Federal Magistrate Court Rules did not set out any criteria for the Court to follow in exercising their discretion to grant leave to a party to adduce evidence other than the evidence of a joint expert.

The Court also referred to the matter of Knight and Knight [2007] FamCA 263.  In this matter, Bryant CJ, granted the wife permission to adduce evidence from an expert witness who was not jointly appointed after having regard to the following:

  1. whether it is necessary to resolve or determine an issue in the case;
  2. whether unnecessary costs will arise from the appointment of more than one expert, and, if so, whether the interests of justice outweigh the costs involved;
  3. considering whether the interest of justice are otherwise met, and in particular whether there would be any delay occasioned by allowing the wife to have an expert, and, if so, whether that is outweighed otherwise by the interests of justice.

In determining this issue, the Court considered the significant difference between the valuations and the significant effect the valuations have on the property pool.  The Court also noted the real property in question was not a usual suburban house, but a rural/residential block which value may be affected by other factors (e.g. the government’s selling of the land resumed for the Traveston Dam project – this issue was raised by both valuers).

The Court decided that in the interest of determining a just and equitable property division, it would allow the two valuers to give evidence at the final hearing.  At the final hearing, the Court will be required to determine which value will be place on the land (either the joint valuation or the husband’s valuation).  The Court cannot select another figure or average out the values at the final hearing.

© Delaney & Delaney Solicitors. This publication is for information only and is not legal advice. You should obtain advice specific to your circumstances and not rely on this publication as legal advice. Should you have any queries in relation to this publication, please contact our office on (07) 3236 2604.