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Property – leave granted to adduce evidence from adversarial expert…

family law casenotes

…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)] …

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(…)

[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.”

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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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