!

NOTICE ALERT IN LIGHT OF COVID-19

WHAT WE PROPOSE AND HOW WE CAN ASSIST

At Watson & Watson our clients come first. Please be assured of our continued dedicated services to all current and new clients.

As we have done in the past, we will continue to offer alternative conferencing methods ie video conferencing, skype or telephone conferences. Reviewing of all documentation provided to us prior to any initial conference will be all inclusive of our set fee. Do not hesitate to contact Shereen Da Gloria on (02) 9221 6011 should you have any concerns.

Opinion Evidence required to be given in accordance with the Evidence Act

15/04/2020

Watson & Watson Solicitors are engaged and act in many areas of Law which require Opinion Evidence to be provided.  In many areas of dispute there is a requirement to provide Opinion Evidence.

Opinion Evidence is not admissible to prove the existence of a fact about the existence of which the opinion is expressed. 

Watson & Watson are experienced Solicitors and instruct Experts in many fields on a very regular basis critical to establishing an opinion.

In Family Law Matters Opinion Evidence is required, for example in relation to the Valuation of different varied assets.  Some assets are easily valued and some are much more difficult to value.  Some examples are a Valuation of “stock standard” Real Estate which is readily available and without any real obscurities.  There are greater difficulties where there is a property with no comparable, for example a home designed by a legendary Architect.  Another example is of Real Estate that is part constructed at the time of need for a Valuation; a Valuation of rare items such as books, coins, banknotes, artwork.

Valuation of businesses can also be challenging depending on the business type, restriction to entry, size of the business, qualifications required and all associated matters such as intellectual property issues.  One issue that arises in Family Law matters is a family run business and how one deals with the issue of a non-compete clause if the business is to be sold or if the business is to be maintained by one of the parties to the exclusion of the other party.

In Family Court or Federal Circuit Court matters what are the consequences where the Expert on behalf of one party is non-compliant or in a case where the Experts engaged by each of the parties is non-compliant for one reason or another?

This issue has arisen in a recent Family Court Case in Victoria in a decision handed down in March 2019.  There was an issue as to the valuation of a book collection.  We refer further to the case below.  The difficulty arises in that the Family Court or Federal Circuit Court in dealing with property issues is to come to a decision and make appropriate Orders for the division of the assets, the subject of the pool of assets available. In such a case it is inappropriate where the Expert Evidence as to the Value of the assets, for example the book collection, is such that there is no basis for the Court to determine a value of the book collection.  In the case referred to below the consequence was that the book collection would be sold.  

In the case of Isaacson & Isaacson decided by Judge Wilson the Family Court was faced with this issue.  In light of the findings concerning the inadmissibility of the Evidence produced by the Expert on behalf of the Husband and secondly (for a different reason) the inadmissibility of the Evidence on behalf of the Wife.

In this case the couple was married from 2010 to 2016.  In that time the Wife was in stable employment and made the major contribution to the expenses of the relationship.  The Husband, despite having a Masters qualification, elected to work sporadically and only a few hours a week and earned little.  The Wife made repayments on the Mortgage over the Matrimonial Home and paid her Husband approx $1,200.00 a month.  The Husband spent a portion of that money from the Wife in purchasing various books.  The Husband had at the commencement of the relationship a keen interest in books and had a collection.  The Husband’s Solicitors engaged an Expert referred to as Mr C.  During the relationship there were additional purchases and the book collection was expanded.

The Husband sought that he be allocated the whole of the book collection as part of his allocation of the assets of the relationship.  Watson & Watson Lawyers recently had a similar case relating to Husband and Wife who had a modest house and there was an art collection which was a significant collection of particular items which were of considerable value.  That matter was resolved without resorting to Court proceedings.

However in Isaacons’s case the Lawyers for each of the parties engaged persons who were submitted as Experts to value the book collection.  The Expert briefed on behalf of the Husband (referred to as Mr C) submitted that the book collection was worth $183,905.

The Expert briefed on behalf of the Wife (referred to as the Wife’s Expert) valued the book collection at $384,421.  The difference in valuation was approximately $200,000 which was a significant proportion of the assets to be divided between the parties.  Mr C was a dealer in second hand book and produced a 97 page Affidavit valuing the collection.  However the Court on examination found that Mr C’s valuation was deficient and unacceptable and accordingly was not admitted into evidence.  We have over the years engaged Valuers to value many different items including businesses, collections, aeroplanes, real estate, specialist businesses, family business operated by both parties, machines, equipment, unit developments and property subject to significant defects including prestige property to name a few of the items we have had to obtain valuations thereof. 

In those circumstances when the Court refused to accept (on an appropriate basis) the evidence of Mr C, the Husband was left with the initial proposition in accordance with his request the book collection would be allocated to him and that there was no evidence to contradict the evidence on behalf of the Wife which was such that the Wife submitted was worth $384,421.00.  If such a finding was made it would have had a devastating effect on the outcome of the proceedings.

As it happened the Solicitor for the Husband had sought that the Expert briefed on behalf of the Wife be available for cross examination.  This is appropriate and in accordance with the rules applicable.  In this case the Wife’s Expert was not available for Cross Examination and the Court held that the Report from the Wife’s Expert was inadmissible.

As a consequence the appropriate Order which was adopted, being the Order adopted by the Court, was that the asset be sold and the proceeds would be divided in a proportional distribution to be decided by the Court.  In Isaacson’s case the Husband in cross examination had said he owned 90% of the book collection prior to the parties’ co-habitation.  The Court found that was largely an estimate more properly a guess.  There was criticism as to the failure of the Husband to comply with various Orders.  The Husband could have easily catalogued the books and provided particulars in accordance with the directions made and have it prepared some months before the Hearing. 

This was at the Husband’s peril.  Eventually on the basis of the Evidence the Court found that the proceeds from the sale would be divided between the Husband and the Wife on a 50/50 basis.  This case is a clear reminder that the Evidence must be prepared properly to put our client’s position forward in a form of appropriate evidence.  If that had occurred in the case of Isaacson there would have been a different outcome in those proceedings.

At Watson & Watson our experienced Solicitors have been engaged in all aspects of Family Law matters for many years including financial/property settlements where the asset pool has comprised items of significant value requiring valuation by an Expert.  If you find yourself in circumstances where you need advice contact Richard Watson Senior Family Law Solicitors or his Personal Assistant Shereen Da Gloria to discuss your concerns and seek appropriate advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

Divorce & Separation FAQs

Related Cases & Articles

Personal Experienced Professional Affordable

Phone 02 9221 6011

Send us your enquiry
Book an appointment Request a quote Send your question
Online enquiry form

Watson & Watson are always available to provide expert legal advice and answer any questions you may have.

All enquiries received will be responded to within 24 hours.

Call: 02 9221 6011