Casey and Casey and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

CASEY & CASEY & ANOR

[2014] FCCA 289

Catchwords:
FAMILY LAW – Property – interim spousal maintenance – joint expert valuations.

Legislation:

Family Law Act 1975, ss.72, 74, 75, 80, 117

Federal Circuit Court Rules 2001, regs.15.06A, 15.07, 15.08, 15.09

In the Marriage of Bevan (1993) 19 Fam LR 35
In the Marriage ofWilson (1989) FLC 92-033; 13 Fam LR 205

Applicant:

MS CASEY

First Respondent:

MR CASEY

Second Respondent:

[R] PTY LTD

File Number:

SYC 1274 of 2013

Judgment of:

Judge Monahan

Hearing date:

16 December 2013

Date of Last Submission:

16 December 2013

Delivered at:

Sydney

Delivered on:

26 February 2014

REPRESENTATION

Counsel for the Applicant:

Ms Sproston

Solicitors for the Applicant:

Warren Mckeon Dickson Lawyers

Counsel for the First Respondent:

Mr Sperling

Solicitors for the First Respondent:

Solari & Stock Lawyers

Counsel for the Second Respondent:

Not applicable

Solicitors for the Second Respondent:

Southern Waters Legal

THE COURT ORDERS THAT:

Within 14 days the parties agree on a joint valuer, or valuers, to prepare a single expert valuation of:
(a)the shares owned by the company ‘[C] Pty Limited’ in the third party company [R] Pty Limited; and
(b)the Respondent Husband’s interest in the ‘[I] Partnership’.
In relation to paragraph 1 herein:
(a)in the event that the parties cannot agree on a joint valuer or valuers within 14 days, then within a further seven (7) days:
(i)the Applicant Wife nominate and provide contact details, fee information and availability for three (3) appropriate valuers for each entity;
(ii)within a further seven (7) days thereafter, the Respondent Husband select a valuer or valuers from the list provided to him by the Applicant; and
(iii)the parties thereafter forthwith prepare a joint letter of instruction to be sent to the relevant valuer.
(b)each party pay half of all costs related to the preparation of the single expert valuations and, if necessary, the parties jointly cause the costs of obtaining the single expert valuations to be paid from matrimonial funds or, if permitted, from funds that may be drawn down from the current mortgage over the former matrimonial home; or
(c)in the event order 2(b) herein is not possible or permissible, the Respondent Husband pay, in the first instance, the total costs of the single expert valuations, with the Applicant Wife to reimburse the Respondent Husband for one half of such costs from her share of the proceeds from the final property settlement between the parties.

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

The Respondent Husband pay the Applicant Wife, by way of spousal maintenance, the sum of $200.00 per week, with such payments to commence from within 14 days from the date of this judgement.

AND THE COURT NOTES THAT:

A.All extant applications remain listed on 7 March 2014 for mention (“the mention hearing”).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1274 of 2013

MS CASEY

Applicant

And

MR CASEY

First Respondent

[R] PTY LTD

Second Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings are between MS CASEY (“the wife”) and MR CASEY (“the husband”).
In her Application filed 12 March 2013 the wife seeks various property orders on an interim and final basis and spousal maintenance on an interim basis.
In his Response, filed 20 May 2013, the husband seeks different property orders on an interim and final basis and also seeks various parenting orders.
The wife subsequently amended her Application on 28 June 2013 to include parenting orders and more specific property and spousal maintenance orders. The wife also sought to join the company [R] Pty Limited as a third party to the proceedings.
The interim property and procedural orders were subsequently over-listed for hearing on 31 July 2013. On that occasion the interim hearing did not proceed as the parties were able to agree to various interim property and procedural orders that enabled the company to be joined as a third party and for various property-related restraints to be imposed. The Court was also advised on that occasion that the parties had reached “agreement in principle” with respect to parenting and property orders and intended to use the adjourned period to formalise that agreement in writing.[1]
[1] See Orders made 31 July 2013.
When the matter returned before me for mention on 13 September 2013 the Court was advised that there was no longer any agreement in principle to resolve all extant applications and that a further issue of conflict had arisen as to whether an independent valuation of relevant entities was required. When the matter returned before me again on 15 October 2013 I agreed to list the matter for a further interim hearing on 16 December 2013.
This decision only concerns certain interim issues detailed further below.

Background

The wife was born [in] 1969 and the husband was born [in] 1973. The parties commenced cohabitation in early 1998 (as alleged by the husband) or early 1999 (as alleged by the wife).
The parties were married [in] 2000. There are five children of the marriage; [V] born [in] 2002, [W] born [in] 2003, [X] born [in] 2004 and twins [Y] and [Z] born [in] 2007.
At the time of cohabitation the husband asserts he was employed by the third party company (which was owned by his parents). The husband further asserts that the entity [C] Pty Limited was registered on 20 December 2000 and that the following year his parents gifted him a 25% shareholding in the third party company.
It would appear that the husband left his employment with the third party company in April 2012. He ultimately gained employment at [omitted] in October 2012 and he remains in that employment.
It would also appear that the husband entered into a Deed of Agreement and Release with the third party company on 15 October 2012. That agreement provided for the husband to receive a dividend of $6000 per month until 30 June 2013. It is not disputed that the husband paid those monies into the parties’ joint account and that the wife used those monies for living expenses.
The parties finally separated on 18 November 2012.
As stated, the parties are not just in dispute in respect of financial issues; they are also in dispute as to parenting matters. Interim parenting orders were made by consent on 15 October 2013. Those orders provided inter alia for the children to spend time with father and contemplated overnight time commencing on the weekend of Saturday, 14 December 2013 (that is, the weekend just prior to the interim hearing). During the course of the interim hearing the Court was advised that the wife had informed the father that overnight time would not occur unless such time was supervised. This requirement, which was not contemplated in the interim parenting orders, was opposed by the husband.
Given the apparent breakdown in the parenting relationship between the parties, and the mother’s decision not to fully comply with the current interim parenting orders, I determined that the matter would benefit from the appointment of an Independent Children’s Lawyer and an order to that effect was made on 16 December 2013. I have listed the parenting matters for further mention on 7 March 2014.

Issues and Proposals

The issues for determination in this decision are as follows:
a)whether there should be a single expert valuation of:
· the shares owned by the company ‘[C] Pty Limited’ in the third party company [R] Pty Limited, and
·the husband’s interest in the ‘[I] Partnership’;
b)should the Court be of the view that there should be a single expert valuation then, who should pay for such valuations; and
c)whether there should be an interim spousal maintenace order requiring the husband to pay the wife the sum of $2,000.00 per month.
In addition to the above, the wife sought to agitate for the court to determine which party should be liable for the debt owed to Centrelink for the tax year ending 2011/2012. This additional issue was only the subject of some limited submissions by the wife. The Court does not intend to concern itself with this particular issue for this interim decision as it considers that such a decision can only flow from a formal testing of the evidence at a final hearing between the parties.
The Court also notes that the wife had sought an exclusive occupation order in her interim application. As that particular issue was not the subject of any submissions during the course of the interim hearing, it will not be considered for this determination. It is clear from the evdience that the wife resides in the former matrimonial home with the children and that the husband resides in rented accommodation with his new partner.
In respect of the areas in dispute relevant to this decision, the husband opposes the wife’s interim application to spousal maintenance. While the husband questions the merits of some of the ‘necessary’ expenditure claimed by the wife, his opposition is primarily based on a lack of capacity to meet the interim spousal maintenance order sought.
In respect of the “single expert valuation” issue, the wife seeks that the husband pay the entire cost in the first instance with the Court to revisit the issue of liability at the final hearing. The husband seeks that there be no single expert valuation on the basis that they are not necessary and otherwise opposes an order that he be solely responsible for payment of the valuation costs. The husband does not oppose the wife obtaining her own valuations.
The third party company did not wish to be heard in respect of the “single expert valuation” issue. I note that in their letter to the Court dated 13 December 2013, the legal representatives for the third party company stated:
“On 15 October 2013… [our Ms B] attended court on behalf of …[the third party company] and indicated to the Court the position of the second respondent being:
*The second respondent did not have a position as to whether avaluation should be obtained or not, however should the court order of valuation then they seek that the valuation be carried out by [B] Finance.
Our client maintains their position that:
*They do not wish to be heard on the issue as to whether a valuation should be obtained.
*In the event and order is made for a valuer to be appointed our client no longer seeks an order that the valuation be carried out by [B] Finance and is content for the Court to determine an appropriate valuer.”

Submissions

Counsel for each party presented oral submissions to the Court. The transcript for the interim hearing conducted on 16 December 2013 will, of course, reflect those oral submissions. I do not propose to summarise the submissions made by counsel any further in these reasons but I will refer to those submissions in my discussion of the relevant law below.
In addition, each of the parties’ legal representatives provided the Court with a written case outline document and, in the case of the wife, a minute of precise orders sought.
In addition to relying on their affidavit material, both parties tendered a number of documents which the Court has now considered in addition to their affidavit evidence.

Law and discussion

The Court will firstly consider the wife’s application for interim spousal maintenance before secondly considering her request for there to be single expert valuations of the relevant entities (and if so, for the cost of such valuations to be, initially, the responsibility of the husband).

Spousal maintenance

Applications for spousal maintenance, whether urgent, interim or final, are governed by the provisions of Part VIII of the Family Law Act 1975 (“the Act”).

Threshold test

The liability for spousal maintenance (or the right of one spouse being maintained by the other) is enunciated in s.72(1) of the Act:
“(1) A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).”
It is clear that the spousal maintenance right is a conditional one. The general right is subject to the party in need being unable to support himself or herself and the other party being reasonably able, financially speaking, to provide such support. The Court, in doing so, can take into account the party’s ability or reasonable efforts to obtain employment to counter a claim for spousal support.
In this case, I note that while the husband raises questions about some of the asserted expenditure items claimed by the wife, his main opposition to the making of any spousal maintenance order is based upon his lack of financial capacity to meet such an order.
In his Amended Financial Statement sworn and filed on 11 December 2013, the husband asserts that his weekly personal expenditure exceeds his average weekly income by the sum of $215.00. That said, the husband further discloses that he receives the sum of $250.00 per week from his partner, Ms B, “for food, household supplies and electricity”, and a further $55.00 per week from the third party company for “motor vehicle expenses”. In other words, the husband’s Amended Financial Statement discloses that his income actually exceeds his expenditure by approximately $90.00 per week.
The wife similarly raises questions about some of the expenditure asserted by the husband, and in particular, she argues that some of the expenditure items referred to in the husband’s Amended Financial Statement is of a discretionary nature. For example, the wife questioned the costs associated with the husband’s gym membership and classes ($45.00 per week), consumption of cigarettes ($50.00 per week) and entertainment/hobbies ($20.00 per week) (a total of $115.00 per week).[2] While the wife’s comment regarding gym membership and cigarette consumption has merit, her criticism of the husband spending $20.00 per week on “entertainment/hobbies” seems somewhat disingenuous when she herself asserts to be spending $40.00 per week on items within that category.
[2] Transcript, 16 December 2013, page 19.
The wife’s criticism of the husband asserting expenditure of $50.00 per week for “children’s activities” seems somewhat naïve and also somewhat disingenuous.
While the financial evidence relating to the husband’s cohabitation with his partner is not clear at this stage, there is some merit in the wife’s submission that the husband’s partner could contribute a greater amount towards the husband’s weekly expenses.[3] The sum of $250.00 per week would only cover one half contribution towards rent ($157.50) and some $92.50 towards “food, household supplies and electricity”.
[3] Ibid.
Overall, the Court is satisfied that the husband has financial capacity to meet a modest spousal maintenance claim.
In her financial statement sworn and filed on 12 December 2013, the wife asserts that her personal weekly expenditure exceeds her average weekly income by the sum of $1203.00 per week. The wife is engaged in home duties and not in receipt of employment income. Her income comprises family assistance ($401.00 per week), a Centrelink parenting payment ($268.69 per week) and child-support ($358.00 per week).
It is noteworthy that the wife is currently meeting all the outgoings in respect of the former matrimonial home. This includes mortgage payments ($231.00 per week), rates ($46.00 per week), strata levies ($92.00 per week). In addition to the expenses outlined in Part N of her most recent financial statement ($1764.00 per week), the wife also asserts that additional expenses include home contents insurance ($20.00 per week) and health insurance ($77.00 per week).
It would be difficult for the Court to characterise the expenditure relating to the former matrimonial home as “discretionary”. While the Court acknowledges that there will be an argument at the end of the day as to whether this particular expenditure will be viewed as a financial contribution favouring wife, housing costs of approximately $369.00 per week for a mother with five dependent children appears entirely reasonable and perhaps more cost-effective than rental accommodation.
That said, it is clear that a significant amount of the weekly expenditure outlined in Part N of the wife’s most recent financial statement are costs attributable to the children. These include children’s activities ($370.00 per week), food ($250.00 per week) and education expenses ($90.00 per week).
In addition, I agree with the husband’s submission that it is somewhat curious that the wife’s Part N expenditure is the same as that contained in her earlier financial statement sworn on 11 March 2013 and at a time when she was receiving support of $6,000.00 per month from the husband via the payment he was then receiving from the third party company.[4]
[4] Husband’s further case outline dated 16 December 2013, page 2.
Nevertheless, I am satisfied that because of her need to care for the five children of the marriage, and for the reasons already outlined and further articulated below, the wife is presently unable to support herself adequately.
Consequently, the threshold test is met.

Power to award spousal maintenance

The Court has the power to make a spousal maintenance order as it considers proper under s.74 of the Act subject to considering the relevant matters set out in s.75. Section 80(1)(b) of the Act allows the Court to make the order for payment weekly, monthly, yearly or periodic sum. Section 80(1)(h) allows the Court inter alia to make an order pending the disposal of the proceedings.
The power referred to in s.74 of the Act has been the subject of numerous decisions and numerous comments by the Full Court of the Family Court of Australia (“the Full Court”) in particular cases such as In the Marriage ofWilson (1989) FLC 92-033; 13 Fam LR 205 (“Wilson”) and in the case of In the Marriage of Bevan (1993) 19 Fam LR 35 (“Bevan”).
In Bevan, the Full Court, comprising of Nicholson CJ, Lindenmayer and McGovern JJ, provided the following checklist when considering the exercise of the power under s.74 of the Act:
“[W]e would state the law as being that an award of spousal maintenance requires:
(1) a threshold finding under s 72;
(2) consideration of s 74 and s 75(2);
(3) no fettering principle that pre-separation standard of living must automatically be awarded where the respondent's means permit; and
(4) discretion exercised in accordance with the provisions of s 74, with reasonableness in the circumstances'’ as the guiding principle.”
Section 75(1) of the Act is therefore relevant in these proceedings and it states:
“In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).”

Spousal maintenance factors

Section 75(2) provides a large list of matters to be considered. Of relevance, arguably, in this case would be the following sub-paragraphs of s.75(2):
“The matters to be so taken into account are:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
…
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
…
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
…
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account[.]”

Section 75(3) states:
“In making a spousal maintenance order, the Court must disregard any entitlement of a party in need to an income tested pension, allowance, or benefit.”
The Court will now consider the relevant s.75(2) factors in light of the available evidence.

The age and state of health of each of the parties

Both parties are relatively young (44 and 40 years respectively) and both appear to be in good health.

The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment

The Court has previously made comments about the “income” currently received by the parties.
The husband is now engaged in full-time employment and the wife is the primary carer for the five children of the marriage. The issue about the husband’s relationship with third party company, and his interest in any other entity, is yet to be considered.
Although the wife is required to seek employment opportunities as part of her Centrelink obligations, her capacity to gain appropriate employment at this time is limited.

Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years

As stated, the mother is the primary carer of the five children of the relationship there is an ongoing parenting dispute between the parties.

Commitments of each of the parties that are necessary to enable the parties to support:

(i) himself or herself;

(ii) a child or another person that the party has a duty to maintain

The husband has re-partnered. He pays child support for the children of the marriage as assessed.
As stated, five children of the marriage (aged between 6 and 11 years) live with the wife. She has not re-partnered.

The responsibilities of either party to support any other person

I refer to the above comments.

The eligibility of either party for a pension, allowance or benefits

The wife is in receipt of parenting and family assistance benefits through Centrelink.

Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable

The evidence would suggest that the parties’ standard of living was above average prior to separation. Both parties make criticisms of the other in respect of asserted expenditure necessary to maintain their current respective standard of living.

Extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income

This was not the subject of any particular submission by either party.
The wife previously trained as a [occupation omitted] but has been out of the paid workforce for over 10 years. She asserts that she has made enquiries and discovered that she would need to do a course of training (with an estimated cost of $8000.00) in order to gain the appropriate qualifications to work as a [omitted] now.[5]

The effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant

[5] Wife’s affidavit sworn 27 June 2013, paragraph 61.

I am satisfied that on the evidence presented, there are sufficient assets to satisfy the claims of all known creditors.

Extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party

The evidence would suggest that the wife’s assumption of domestic duties and carer responsibilities assisted the husband to devote his energies to paid employment and income generating investments.

Duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration

The husband and the wife cohabitated for over 13 years during which their five children were born.

Need to protect a party who wishes to continue that party's role as a parent

As stated, the children reside with the wife. The father is seeking defined ‘spend time with’ orders.

If either party is cohabiting with another person – the financial circumstances relating to the cohabitation

As stated previously, only the husband has re-partnered. His most recent financial statement discloses that his partner is aged 46 years, earns an estimated amount of $1,400.00 per week, and contributes $250.00 per week to the husband’s “food, household supplies electricity costs.”

Terms of any order made or proposed to be made under section 79

As stated, both parties are seeking property orders.
The wife is seeking to retain the former matrimonial home (subject to discharging the current mortgage) and receive monies from the husband equivalent to 50% of the value of the his company’s interest in the third-party company. She is also seeking $60,000.00 by way of a super splitting order and to retain other property including 2007 Toyota Tarago.
The husband is seeking orders for the sale of the former matrimonial home and for the net proceeds to be divided 55% of his favour and 45% to the wife. He also proposes a superannuation split to the wife in the amount of $25,807.00 from his [A] Super Fund (which he asserts is valued at approximately $65,000,00) and for the parties to otherwise retain all other property respective possession (which would include the husband retaining the shares in his company and his interest in the [I] Partnership).
The parties appear to agree that the equity in the former matrimonial home is $400,000.00.
The parties have not reached an agreement, of course, with respect to the value of the shares in the husband’s company (and its interest in the third party company) and his interest in the [I] Partnership.

Terms of any order or declaration made, or proposed to be made, under Part VIIIAB

This consideration is not relevant to the present dispute.

Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage

The husband pays child support pursuant to a child support assessment.

Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account

During the course of submissions I raised with the wife’s counsel the expenditure claimed by the wife in her Part N for “telephone”. My attention was drawn to the wife’s Part O “additional information” that states that the $100.00 per week claimed for telephone expenses and includes the cost of home phone, the wife’s mobile phone, internet and Foxtel. Despite the benefits of multiple communication and media access, these combined expenses are still arguably at the higher end of the scale.
Otherwise, there are no other factors which the justice of the case requires to be taken into account that have not been discussed previously in this decision.

The terms of any financial agreement that is binding on the parties to the marriage

This consideration is not relevant to the present dispute.

The terms of any Part VIIIAB financial agreement that is binding on a party to the marriage

This consideration is not relevant to the present dispute.

Spousal maintenance findings

Having considered the available evidence in light of the relevant statutory criteria, the Court is satisfied that a spousal maintenance order should be made in the wife’s favour and against the husband on an interim basis.
The Court is satisfied that until further order that the husband should pay the wife the sum of $200.00 per week for spousal maintenance.
The calculation of this amount is based on the Court’s view that the husband spends $95.00 per week on a gym membership and cigarettes that may be unnecessary. The Court is of the view that it is reasonable for the husband to reduce his weekly expenditure on these items.
Additionally, the Court is of the view that it would be reasonable for the husband’s de facto partner to contribute more equally to the cost of their household, to enable the husband to provide the wife with the weekly spousal maintenance payment.
In effect the amount of $200.00 per week will account for approximately one half of the wife’s housing expenses and will enable her to continue in her capacity caring for the parties children.

Single expert valuation

Division 15.2 of the Federal Circuit Court Rules 2001 (“the FCC Rules”) deals with the question of expert evidence.

Expert evidence

An expert is defined in reg.15.06A as follows:
expert, in relation to a question, means a person (other than a family and child counsellor or a welfare officer) who has specialised knowledge about matters relevant to the question based on that person's training, study or experience.”
Also of relevance is reg.15.07, which states:
“For an expert's duty to the Court and for the form of expert evidence, an expert witness should be guided by the Federal Court practice direction guidelines for expert witnesses.
Note:    While not intended to address all aspects of an expert's duties, the key points in the guidelines are:
*       an expert witness has a duty to assist the Court on matters relevant to the expert's area of expertise
*       an expert witness is not an advocate for a party
*       the overriding duty of an expert witness is to the Court and not to the person retaining the expert
*       if expert witnesses confer at the direction of the Court it would be improper for an expert to be given or to accept instructions not to reach agreement.”
Regulation 15.08 deals with expert evidence for two or more parties and states:
“(1)This rule applies if 2 or more parties to a proceeding call expert witnesses to give opinion evidence about the same, or a similar, question.
(2)The Court may give any direction that it thinks fit in relation to:
(a)the preparation by the expert witnesses (in conference or otherwise) of a joint statement of how their opinions on the question agree and differ; or
(b)the giving by an expert witness of an oral or written statement of:
(i) his or her opinion on the question; or
(ii) his or her opinion on the opinion of another expert on the question; or
(iii) whether in the light of factual evidence led at trial, he or she adheres to, or wishes to modify, any opinion earlier given; or
(c) the order in which the expert witnesses are to be sworn, are to give evidence, are to be cross-examined or are to be re-examined; or
(d)the position of witnesses in the courtroom (not necessarily in the witness box).
Example:
The Court may direct that the expert witnesses be sworn one immediately after another, and that they give evidence after all or certain factual evidence has been led, or after each party's case is closed (subject only to hearing the evidence of expert witnesses) in relation to the question.”
Regulation 15.09 allows the Court to appoint what is commonly referred to as a “single expert”. It states:
“(1)   The Court may, at the request of a party or of its own motion:
(a)    appoint an expert as court expert to inquire into and report on a question arising in the proceeding; and
(b) give directions about an experiment or test (other than a testing procedure for section 69W of the Family Law Act) for the purposes of the inquiry or report; and
(c)    give further directions, including to extend or supplement the inquiry or report.
(2)   If possible, the court expert should be a person agreed upon between the parties.”
At this point, I would also note that reg.15.11 stipulates:
“Unless the Court otherwise directs, the parties are jointly liable to pay the reasonable remuneration and expenses of the court expert for preparing a report.”
In summary, the Court has the power to order the parties to obtain a single expert valuation, and unless the Court otherwise directs, the parties would be equally liable for the reasonable costs of the expert, including preparation and report on Court attendances. If the parties independently obtain expert reports in relation to the same subject matter, then the Court can direct the experts to confer to identify points of agreement and disagreement. Clearly the parties would be liable for the reasonable costs of their own expert, including time to confer and give evidence. While the reasonable costs of any expert may be the subject of a costs order, the general principle enunciated in s.117(1) of the Act is that each party should pay the costs.
Clearly, there are costs and time savings in having a single expert. While either party would be at liberty to test the evidence of the single expert, in many situations it would be fair to say that the opinion of the single expert is ultimately accepted by the parties without the need to test that opinion. Where a party seeks to test the evidence of a single expert, it would not be unusual for that party to engage their own adversarial expert and seek to have that witness giving evidence.
In this case, failing agreement between the parties as to the value of the relevant entities, or the sale of the relevant entities, valuation evidence will be required. The options for the Court to consider appear to be:
·order that the parties obtain a single expert valuation with the costs to be equally shared by the parties (or, if applicable, paid from matrimonial property or by drawing down upon the current mortgage over the former matrimonial home);
·order that the parties obtain a single expert valuation with the husband to initially meet the costs of the valuer and the wife to reimburse the husband for one half of such costs from her share of the final property settlement;
·order that the parties obtain a single expert valuation with the husband to initially meet the costs of the valuer and with the question of whether the wife should pay one half of such costs to be determined at the final hearing; or
·allow the wife to get her own valuation, and in the event that the husband obtains his own valuation, or seeks to rely on the (presumably updated) valuation by [B] Finance, direct that the parties cause those valuers to confer and failing agreement, each of the valuers give evidence and the Court determine the matter.
Either approach will result in further costs to each of the parties. I note that neither party suggested that the third party company should shoulder any liability for the costs of the valuation evidence.
The Court agrees with the submissions of the husband’s counsel that it would not be appropriate to require the parties to rely on the current valuation by [B] Finance for two reasons: firstly, it would appear that the current valuation is incomplete, and secondly, it was obtained by the third party company.[6]
[6] Transcript, 16 December 2013, page 27.
The use of a single expert valuation is widespread, both in this Court, the Family Court and in other jurisdictions. The logic is obvious. It will ensure that the final hearing takes no more time than is necessary and consequently, eliminates the need for competing experts to give evidence and for the Court to determine the matter. It is also cost effective.
Given the circumstances, and failing agreement as to the value to be attributed to the entities, for the purposes of the final hearing, the parties will be required to obtain a single expert valuation.
Failing agreement as to who should provide that expert valuation, the wife can provide the names and details of three qualified valuers and their estimated charges and likely timeframe to complete such valuation and the husband can select one of the valuers from the list. The Orders will provide the appropriate time limits. Once the husband has selected the relevant valuer, the parties can jointly appoint that expert.
This process should hopefully allow the value of the entities to be non-contentious at the final hearing. If there is a dispute as to the valuation of the entities, then such will put pressure on the ability of the matter to be contained to a hearing time appropriate to this Court. That said, given the current nature of the substantive disputes, it is possible that this matter may require a future transfer to the Family Court in any event.
In relation to who should meet the costs of the single expert, I see no reason to depart from the principle enunciated in reg.15.11 of the FCC Rules that the reasonable costs of the single expert be equally shared by the parties. Subject to any agreement to the contrary, the parties are to cause the costs of obtaining the single expert report(s) at first instance to be paid from any funds that may be drawn down from the current mortgage over the former matrimonial home assuming that is possible and permissible. In the event that funds cannot be drawn down then the husband will be required to initially meet the costs of the expert for the report(s) and the wife will be required to reimburse the husband for one half of such costs from her share of the final property settlement.

Summary and Conclusion

The Court is satisfied that the wife has demonstrated a need for payment of interim spousal maintenance, based on her intention to continue caring for the parties’ children, and the living expenses associated with that necessity. As stated, it appears that the wife’s decision to remain living in the former matrimonial home with the children appears to be the most viable option at this stage. The spousal maintenance to be provided by the husband will cover approximately half of the cost of the outgoings associated with the home currently occupied by the wife and the children of the marriage.
The Court is similarly satisfied that the husband has capacity to pay an amount of $200.00 per week spousal maintenance, provided he alters some of his weekly expenses. As stated, the Court is of the view that an alteration in some of the husband’s weekly expenses is reasonable in the circumstances. Orders and notations will therefore be made to reflect that decision.
In relation to the issue of the valuation of the relevant entities, the Court is satisfied that an updated, independent valuation will be beneficial. Consequently, there will be orders requiring the parties to obtain a single expert evaluation together with default provisions dealing with the selection of the valuer(s) and payment for the valuation(s).
There will be Orders and Notations of the Court to reflect this decision.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Monahan

Associate:

Date: 26 February 2014

[2014] FCCA 289

26 February 2014

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