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Property – leave granted to adduce evidence from adversarial expert…

…court erred by considering $11 million difference between valuations in isolation

In Neales [2022] FedCFamC1A 41 (28 March 2022), the Full Court (Aldridge, Tree and Schonell JJ) considered a husband’s application for leave to adduce evidence from an adversarial expert.

The single expert, Mr B, had valued real properties at between $33.835 million and $34.190 million; whereas the husband’s expert, Mr D, had valued the properties at $22.465 million.

The Full Court said (from [25]):

“The primary judge concluded that contrary to the submissions of the husband, there was not a substantial body of contrary opinion, but rather an alternate opinion.

(…)

[27] … The primary judge observed that to permit another expert just because of a divergence in value, even if substantial, was inconsistent with the purpose of the [Family Law Rules 2004 (Cth)] …

(…)

[41] The husband argued … that the following matters, which taken collectively, satisfied as another special reason:

(1) that [each expert] … adopted alternative methodologies … ;
(2) that matters were known to Mr D that were not known to the single expert.

(…)

(3) that … [if] the significant difference in value of over $11 million … arises as a result of a difference in methodology and information, it warrants consideration as another special reason; and
(4) … [I]t is the husband who will be left with the consequences of the findings as to value …

[42] … We are satisfied that the primary judge did not consider these matters in aggregate … but rather confined his consideration to the issue of differences in value. In doing so, the primary judge fell into error.”

The Full Court granted leave for the husband to rely on his adversarial expert and costs certificates were ordered.

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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