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Property – court erred by not providing reasons…

…when rejecting a valuation that was not from a single expert

In Cantoni [2022] FedCFamC1A 11 (7 February 2022), the Full Court (McClelland DCJ, Williams & Wilson JJ) allowed an appeal from a decision of Foster J, reviewing an interim order for the sale of a property made by a Senior Registrar.

The property had been the subject of construction that had stalled. The husband sought interim orders for the immediate sale of the property. The wife sought the appointment of a single expert as to value and orders for a builder to complete the construction, and for the property to be sold upon completion.

After the Senior Registrar ordered an immediate sale, the matter came to the court for review, where Foster J refused the wife’s solicitor’s oral application for leave to rely upon adversarial evidence as to value, the only reason given being “she’s not a single expert” ([18]).

The Full Court said (from [22]):

“The obligation to give reasons varies with the circumstances of the case (Police Federation of Australia and Another v Nixon and Another [2011] FCAFC 161 … at [67]). … While there is generally no need to give detailed reasons when exercising a procedural discretion such as, whether in the context of this case the affidavit of [the adversarial expert] … should have been admitted into evidence, the reasons provided must nonetheless disclose the process of reasoning …

[23] The primary judge in this matter was placed in an invidious position as a result of the appellant not having complied with the requirements of the then applicable Family Law Rules 2004 (Cth) (the Rules). First, the appellant did not file a formal application seeking leave to rely on an adversarial report. Second, the appellant failed to support such an application with an affidavit addressing the requirements of the Rules as required of a party seeking to rely upon an adversarial report. … (…)

[27] … [T]he primary judge did not, in giving reasons for rejection of the report … refer to those matters. Instead, the reason provided by the primary judge for rejecting the report … was solely that she was not ‘a single expert.’ (…)

[29] The failure of a trial judge to provide adequate reasons makes it impossible for the party aggrieved by the ruling and for an appellate court to determine whether the ruling was based on an error of law and, in those circumstances, the failure to give reasons will itself constitute an error of law … (…)”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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