Family Law – Joint Expert Property Valuations What if I don’t like the Joint Expert Property Valuation? To negotiate a property settlement, we first ascertain and agree what’s in the asset pool and then we ascertain or agree the values of those things. Where the value can’t be agreed then, pursuant to the Federal Circuit and […]
Family Law – Joint Expert Property Valuations
What if I don’t like the Joint Expert Property Valuation?
To negotiate a property settlement, we first ascertain and agree what’s in the asset pool and then we ascertain or agree the values of those things.
Where the value can’t be agreed then, pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Rules), a single expert valuer is to be engaged where possible. That is, the parties agree on one valuer who is jointly instructed to provide a valuation. However, it’s often the case that one party is satisfied with the joint single expert’s opinion and the other is not but they just have to suck it up. Or do they?
Tsoutsouvas & Tsoutsouvas
The purpose of the Rule is to avoid “a battle of the experts” (Kent J in Tsoutsouvas & Tsoutsouvas and Ors [2012] FamCA 521 at [26]) and avoid yet another issue for parties to argue about which clogs up the court’s time, resources and increases costs for themselves.
Rule 7.08 of the Rules provides that the Court may allow a party to adduce evidence from another expert on the same issue but only if:
With the property market being so dynamic lately, does this Rule make it easy to dislodge a single expert’s value and replace it with another one?
Giacobetti & Giacobetti
In Giacobetti & Giacobetti (No 2) [2023] FedCFamC1F 1091(7 November 2023), the wife asked that her separate valuer’s opinion be allowed into evidence on the basis of a substantial body of opinion contrary to that of the single expert and that the significant difference in their concluded value amounted to a special reason.
Curren J did not agree and said a substantial body of opinion is more than just a contrary opinion about value. If the contrary value is based on the same and accepted methodology and the same and accepted field of expertise, then “substantial body of opinion” is not necessarily fulfilled.
Curren J noted the experts used different properties as comparable to the subject property and they each gave different weight to factors they identified as significant but these differences didn’t amount to them each using a different methodology. In fact, they both used the same comparable sales methodology but they had a difference of opinion in the end about value.
Did that significant difference give rise to “a special reason” such that the Court should allow the evidence of the wife’s valuer? Again, Curren J said no and found that whilst a significant differential may provide grounds for another expert’s evidence to be allowed, in this case, it did not. Instead, he said the wife’s legal team could cross-examine the jointly appointed valuer on the matters raised by the wife’s valuer and the Court may or may not maintain the first expert’s value.
In Giacobetti & Giacobetti, the Court also reminded us that in considering such questions, it must take into account administration of justice principles such as the timely disposal of proceedings, obligations to other litigants and case management procedures.
Obtaining an alternative valuation is always a risk but if one is obtained, it can form the basis for questions to a joint single expert valuer about their report and in Court proceedings, form the basis for cross-examining a joint single expert but the bar to jump is high to convince the Court to allow it as evidence.
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Senior Associate
e: cleis@adelta.com.au
p: 8415 5004
Senior Associate
B.A., LL.B.(Hons)
Catherine has over 20 years of experience and expertise in all aspects of family law. She has a Bachelor of Arts and Bachelor of Laws (Hons) from Adelaide University.
Catherine provides pragmatic and empathetic advice to individuals during their relationship, after a separation and if they are having difficulties with parenting arrangements.
Being raised on the Eyre Peninsula in South Australia Catherine understands the specific challenges faced by those in rural and regional areas. She has assisted many metropolitan, rural and agricultural clients to navigate the complexities of family law especially where there is intergenerational business or farming enterprises including companies, trusts and self managed superannuation funds.
Catherine can provide specialised assistance in the following areas:
Being Adelaide metropolitan based since 2012, Catherine has raised two children who have experienced both city and country living like her. They are all avid travellers and campers.
When she can, Catherine likes to get away with friends and family to explore the wide brown land, South Australia’s wineries, restaurants and especially the gin distilleries.
Catherine is a qualified mediator having successfully completed the AIFLAM mediation program in October 2023.
She is a member of Family Law Section; Law Society of SA; and AIFLAM and she is on the Practice & Ethics Committee of Law Society
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