ABSALON & ABSALON

[2020] FCCA 1592

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABSALON & ABSALON [2020] FCCA 1592

Catchwords:
FAMILY LAW – Property – application to adduce further expert evidence after a direction that Family Law Rules r.15.49 ought to apply – where single expert valuer has made a report – where respondent seeks leave to tender a report of a second valuer – where methodological divergences in approach taken in producing expert reports – where significant divergence in the valuations in expert reports – satisfied there is a special reason for adducing further expert evidence.

Legislation:

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth), r.15.49

Cases cited:

Wender & Wender [2017] FamCAFC 48

Applicant: MR ABSALON

Respondent: MS ABSALON

File Number: ADC 165 of 2018

Judgment of: Judge Young

Hearing date: 20 May 2020

Date of Last Submission: 20 May 2020

Delivered at: Darwin

Delivered on: 20 May 2020

REPRESENTATION

Counsel for the Applicant: Mr R. Richards

Solicitors for the Applicant: David Burrell & Co.

Counsel for the Respondent: Mr J. Dillon

Solicitors for the Respondent: Kyrimis Lawyers

ORDERS

1. Leave is granted for the respondent to rely on the expert report of MR B filed 15 May 2020.

2. This matter be adjourned part-heard to 21 May at 10:00am (ACST).

IT IS NOTED that publication of this judgment under the pseudonym Absalon & Absalon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 165 of 2018

MR ABSALON

Applicant

And

MS ABSALON

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application to adduce further expert evidence after a direction was made that rule 15.49 of the Family Law Rules is to apply. In other words there was an order for a single expert made last year, a Mr C, to value a business owned by the parties in regional areas of South Australia. The respondent wife seeks leave to tender a report of a second valuer.

3. The submission made was that in the first report Mr C adopted a value-to-owner methodology, at least in part.  Mr C said that he adopted that methodology because a method using future maintainable earnings and capitalisation rate produced a value below the net tangible business assets so he considered that that was an inappropriate methodology, or rather using future maintainable earnings and a cap rate was an inappropriate methodology.  He used a net tangible assets approach. 

4. Mr Dillon pointed out that the Full Court of the Family Court have expressed caution about the use of value-to-owner as an approach in valuations.  In the case of Wender & Wender [2017] FamCAFC the Full Court expressed caution but the particular circumstances of that case were the value-to-owner figure adopted as the value of the business was, in fact, below a market rate and the…