Bergman & Bergman - [2022] FedCFamC2F 1313

Federal Circuit and Family Court of Australia
(DIVISION 2)
Bergman & Bergman [2022] FedCFamC2F 1313

File number: BRC 220 of 2020

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 26 May 2022

Catchwords: FAMILY LAW – property valuations – adversarial expert – valuation of horses – expert witnesses – availability of expert witness for cross examination.

Legislation:
Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth) s 79

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.08

Cases cited:
Carpenter & Lunn [2008] FamCAFC 128

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

TWN & PAQ (2005) 34 Fam LR 190.

Sydneywide Distributors Pty td v Red Bull Australia Pty Ltd [2002] FCAFC 157

Thornton & Little [2022] FedCFamC1A 49

Division: Division 2 Family Law

Number of paragraphs: 37

Date of hearing: 25 May 2022

Place: Brisbane

Counsel for the Applicant: Mr Drysdale QC

Solicitor for the Applicant: O’Reilly Shaw Lawyers

Counsel for the Respondent: Mr Linklater-Steele

Solicitor for the Respondent: Wilsons The Family Lawyers
ORDERS

BRC 220 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BERGMAN

Applicant

AND:
MR BERGMAN

Respondent

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

25 MAY 2022

THE COURT ORDERS THAT:
1.That pursuant to rule 7.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the husband be permitted to rely upon the expert report of Mr C filed on 18 May 2022.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bergman & Bergman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY

The matter comes before me on the first day of a trial where the Applicant Husband (“the Husband”) seeks the leave of the Court, as is required under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”), to lead evidence from what is known as an adversarial expert in regard to the valuation of horses.
The context of that is the following chronology of the litigation:
·The first time the matter was listed for final hearing was on 8 December 2021 before Her Honour Judge Purdon-Sully, which was adjourned.
·The second time the matter was listed for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bergman & Bergman

Details

AGLC: Bergman & Bergman [2022] FedCFamC2F 1313
Case: [2022] FedCFamC2F 1313
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia dealt with a property dispute between Bergman and Bergman. The court was required to decide whether the husband could rely on an adversarial expert's report in valuing the parties' horses, despite the unavailability of the single expert previously agreed upon by the parties. The husband sought to rely on the report of a second expert, Mr D, who had been consulted before the single expert's report was obtained. The wife opposed the application on the grounds that the husband had delayed in providing the report and that it had prejudiced her ability to respond adequately.

The court considered the husband's submissions that Mr D's report used a different methodology, including the use of comparable sales and consideration of the horses' lineage, which was not referenced in the single expert's report. The husband argued that the significant difference in the valuation of the horses, which was in the order of $40,000 against $450,000, could not be cured by cross-examining the single expert. The court noted that there was no less than 14 days' notice to the single expert for him to be available for cross-examination, as required by the Rules.

The wife argued that the application should be dismissed as it did not fall within one of the preconditions set out in Rule 7.08(2) and that the late provision of the report had caused her prejudice by denying her the opportunity to obtain a "shadow expert." The court found that Mr D's report provided a substantial body of opinion contrary to the opinion given by the single expert, as it placed significant weight on the bloodlines of the horses, which was not referenced by the single expert. The court also found that matters known to Mr D but not to the single expert, such as the World Breeding Federation of Sport Horses ranking, may be necessary for determining the issue. The court took into account the significant proportion of the asset pool that the valuation of the horses represented and the husband's failure to deal with the Rules appropriately. The court permitted the husband to rely on Mr D's report, considering it to be in the interests of justice and just and equitable as between the parties.

Orders