Berrell and Berrell - [2013] FamCA 676

FAMILY COURT OF AUSTRALIA

BERRELL & BERRELL

[2013] FamCA 676

FAMILY LAW – PROPERTY – Interim – Expert evidence – Where the parties agreed upon a single joint expert – Where the Wife is seeking permission to rely upon an adversarial expert.

FAMILY LAW – PROPERTY – Interim – Parties to equally share the costs of retrospective valuations.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Royce & Donovan [2012] FamCA 168

APPLICANT:

Ms Berrell

RESPONDENT:

Mr Berrell

FILE NUMBER:

BRC

10381

2010

DATE DELIVERED:

9 September 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

9 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hamwood and Ms Oakley

SOLICITOR FOR THE APPLICANT:

Files Stibbe Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hodges

SOLICITOR FOR THE RESPONDENT:

James Noble Family Law

Orders

IT IS ORDERED THAT

The parties equally share the costs of the retrospective valuations as at April 2003 of the properties located at:
(a) A Drive, Suburb G; and
(b) H property.
The Wife’s application for permission to tender a report and adduce evidence of Mr B as an expert witness is dismissed.
Each parties’ costs of and incidental to the applications be reserved to the trial judge.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Berrell & Berrell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10381 of 2010

Ms Berrell

Applicant

And

Mr Berrell

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Ms Berrell, whom I will refer to as “the Wife”, is currently 63 years of age and is the Applicant in these proceedings. The Respondent, Mr Berrell, whom I will refer to as “the Husband” is currently 67 years of age.
The parties met in November 1970, married in late 1971 and they disagree as to the date of their final separation. On the Husband’s case, separation occurred in and around March or April 2003 and on the Wife’s case, separation did not occur until January or February 2010. Thus, on the Wife’s case, their cohabitation relationship subsisted for some 40 years and on the Husband’s case, for some 33 years. There are two now adult children of the marriage.
The property pool for the purpose of the property settlement proceedings is estimated, for the purpose of today’s application, to be in the order of about $5 million. The trial of the property proceedings is set down to proceed on 12 November 2013.
A range of matters were agitated in applications set down for hearing today but fortunately it would seem consensus has been reached on most of them. For example, so far as disclosure is concerned, the Wife does not pursue an application to the effect that the matter proceed on an undefended basis by reason of the Husband’s failure to disclose and likewise, other matters so far as retrospective valuations and the…

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 Berrell and Berrell

Details

AGLC: Berrell and Berrell [2013] FamCA 676
Case: [2013] FamCA 676
Decision Date: 9 September 2013

CaseChat Overview and Summary

In the matter of *Berrell and Berrell*, Kent J considered an application concerning the division of property. The dispute involved the retrospective valuation of two properties, one located at A Drive, Suburb G, and another described as the H property, as at April 2003. The wife also sought leave to present a report and evidence from an expert witness, Mr B.

The court was required to determine whether the costs of retrospective valuations of the specified properties should be shared equally between the parties. Additionally, the court had to decide whether to grant the wife permission to tender a report and adduce evidence from Mr B as an expert witness.

Kent J ordered that the parties share the costs of the retrospective valuations equally. The application by the wife for permission to tender the report and adduce evidence from Mr B as an expert witness was dismissed. The costs associated with these applications were reserved to the trial judge.

Orders

Orders of the court

IT IS ORDERED THAT

The parties equally share the costs of the retrospective valuations as at April 2003 of the properties located at:

(a) A Drive, Suburb G; and

(b) H property.

The Wife’s application for permission to tender a report and adduce evidence of Mr B as an expert witness is dismissed.

Each parties’ costs of and incidental to the applications be reserved to the trial judge.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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