Cowie & Neylan - [2023] FedCFamC2F 686

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cowie & Neylan [2023] FedCFamC2F 686

File number(s): HBC 130 of 2022

Judgment of: JUDGE TAGLIERI

Date of judgment: 6 June 2023

Catchwords: FAMILY LAW – valuation of property – discrete issue hearing regarding value of former matrimonial home – competing valuations from qualified valuers – where valuers gave evidence concurrently at discrete issues hearing – declaration as to value of the former matrimonial home

Legislation:
Family Law Act 1975 (Cth) s 79

Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.1, 7.1.4, 7.1.6, 7.16, 7.32,

Cases cited:
Bollen & Bollen [2020] FamCA 605

Elsey v Elsey (1997) FLC 92-727

Gamer and Gamer (1988) FLC 91-932

Georgeson and Georgeson (1995) FLC 92-618

Lenehan & Lenehan (1987) FLC 91-815

Little and Little (1990) FLC 92-147

Mallet v Mallet (1984) FLC 91-507

Phillips & Phillips [2002] FamCA 350

Smith and Smith (1991) FLC 92-26

The Commonwealth v Milledge (1953) 90 CLR 157

Division: Division 2 Family Law

Number of paragraphs: 74

Date of hearing: 15 and 16 May 2023

Place: Hobart

Counsel for the Applicant: Ms Mooney SC

Solicitor for the Applicant: Ogilvie Jennings

Counsel for the Respondent: Mr Trezise

Solicitor for the Respondent: PWB Lawyers
ORDERS

HBC 130 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS COWIE

Applicant

AND:
MR NEYLAN

Respondent

order made by:

JUDGE TAGLIERI

DATE OF ORDER:

6 June 2023

THE COURT DECLARES THAT:
A.The market value of the property situate at 1 B Street, Suburb C in Tasmania, is $1,900,000.

THE COURT ORDERS THAT:
1.This matter is listed to 14 June 2024 at 9:30am for the making of final property orders.
2.Within 7 days of the date of the Orders, the parties file a draft minute of orders sought to be made by consent.

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 the pseudonym Cowie & Neylan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri

These proceedings relate to parenting and property matters between Ms Cowie (“the Wife”) and Mr Neylan (“the Husband”). On the first day of the defended hearing, the parties invited the Court to make orders by consent in relation to the parenting issues. After being satisfied the orders were…

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 Cowie & Neylan

Details

AGLC: Cowie & Neylan [2023] FedCFamC2F 686
Case: [2023] FedCFamC2F 686
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Cowie & Neylan concerns a dispute between Ms Cowie and Mr Neylan regarding the valuation of their former matrimonial home in Tasmania. The singular issue was the difference of $500,000 in the valuation of the former matrimonial home, as opined by two qualified valuers. The court was required to determine the current market value of the property, considering the evidence and expert opinions provided by both parties.

The court evaluated the evidence from the two valuers, Mr D and Mr E, who provided differing valuations of $1,750,000 and $2,250,000, respectively. The court assessed various aspects of the valuers' reports and evidence, such as the qualifications and expertise of the valuers, the methodology and detail underlying their opinions, and the choice of properties for comparison. The court found that both valuers adopted the same methodology and approach in expressing their opinions but disagreed on the choice of comparative sales and the value attributed to the land.

Considering the legal principles outlined in previous cases, the court applied a common-sense approach to determine the value of the property, taking into account all relevant material. The court concluded that the comparative sales method should be used as a starting point, with some adjustments based on the court's findings. The court also rejected the summation approach taken by both valuers, finding it to be unreliable.

After evaluating the evidence and applying the appropriate principles, the court determined the current market value of the former matrimonial home to be $1,900,000. The court listed the property proceedings for the purpose of pronouncing final orders and directed the parties to file a draft minute of consent orders within seven days.

Orders