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Expert Evidence of No Use if it is Not Admissible to be accepted by the Court

10/08/2020

The Family Court of Australia or Federal Circuit Court in dealing with property issues will come to a decision and make appropriate Orders for the division of the assets between the parties.

In Family Court matters what are the consequences where the Expert opinion 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 delivered in March 2019.  The case involved the valuation of a Book Collection.

In the case of Isaacson & Isaacson [2019] FCCA 522 (6 March 2019) decided by Judge Wilson, the Court was faced with this issue. 

The case involved the valuation of a Book Collection.

The Court held that Evidence produced by the Expert on behalf of the Husband was inadmissible and secondly (for a different reason) the Evidence produced on behalf of the Wife was also inadmissible.

The Court had to decide how to deal with the division of the assets (including the Book Collection).

In this case the brief facts were:

  • The couple were married from 2010 to 2016.
  • 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 he earned little income.
  • The Wife made repayments on the Mortgage over the Matrimonial Home and paid her Husband approx $1,200.00 a month. 
  • The Husband had at the commencement of the relationship, a keen interest in books and had a collection.
  • The Husband spent a portion of the money he received from the Wife in purchasing various books. 
  • During the relationship there were additional purchases and the Book Collection was expanded.

There were other issues in these proceedings as there often are.  The Husband sought that he be allocated the whole of the Book Collection as part of his allocation of the assets of the relationship. 

The Expert briefed on behalf of the Husband (referred to as Mr C) submitted that the Book Collection was worth $183,905.  The Court held that Mr C’s valuation was inadmissible.

In our opinion, there would be available relevant Experts who could be engaged to value a Book Collection. 

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 the valuation was approx. $200,000 which was a significant proportion of the value of the assets to be divided between the parties. 

In those circumstances, when the Family 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 that the Book Collection be allocated to him and that there was no evidence to contradict the evidence on behalf of the wife which the wife submitted was worth $384,421.  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 accordingly, the Court held that the Report from the Wife’s Expert was inadmissible.

In those circumstances there was a scenario where there was no Evidence available to the Family Court as to the value of one of the main assets available for distribution. 

As a consequence, the appropriate Order which was adopted by the Family Court, was that the asset (namely the Book Collection) be sold and the proceeds 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 Family Court did not accept the estimate or guess. The Husband could have relatively easily catalogued the books and provided particulars in accordance with the directions made and have it prepared some months before the Hearing.  The Family Court found that it was the Husband’s cavalier approach that adversely impacted upon the Wife’s approach towards a proper preparation of the matter for Trial. 

This was at the Husband’s peril. 

Eventually on the basis of the Evidence, the Family 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.

In Issacons’s case there were other issues which affected the outcome of the case.

Watson & Watson recently had a similar case relating to Husband and Wife who had a modest house and there was an art collection which was a considerable collection of particular items which were of considerable value.  That matter was resolved without resorting to Court proceedings.

At Watson & Watson our highly experienced Family Law Solicitors can assist you in relation to financial/property settlement matters and the significance of the appropriate “admissible expert evidence” on all aspects of the case and its impact when it comes to financial/property settlement or other matters such as children’s matters. Please contact Richard Watson Senior Family Law Solicitor or his Personal Assistant Shereen Da Gloria to discuss your concerns and seek the appropriate advice when it comes to Expert Evidence and to facilitate a cost effective resolution.

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

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