Cunningham and Cunningham (No 2)

In *Cunningham & Cunningham (No 2)* [2018] FamCA 1164, the Family Court of Australia considered an application by the husband for leave to adduce into evidence a new valuation of the parties' former matrimonial home. This application was made after 17 days of evidence had already been heard in a property settlement and parenting trial, and opposed by the wife. A previous valuation of the property, obtained on joint instructions, was already before the court.

The legal issue before the court was whether to grant the husband leave to adduce the second valuation report, pursuant to Rule 15.49 of the *Family Law Rules 2004* (Cth). This rule requires court permission to tender a report from another expert on the same issue when a single expert has already been appointed, unless specific conditions are met, such as a substantial body of contrary opinion, new relevant information known to the second expert, or another special reason. The husband argued that the second valuation was necessary due to market movements since the first report and that the second valuer possessed knowledge of matters not known to the first.

Justice Forrest dismissed the husband's application, finding that it would not be a just and equitable outcome to permit the new valuation to be admitted. The court noted the peculiar circumstances of the trial's adjournments and the husband's delay in bringing the application, despite being advised on the proper procedure. Crucially, the court found that the wife and her legal representatives had not been afforded sufficient time to consider the new report, obtain advice, or prepare for cross-examination, especially given the trial's imminent conclusion. The husband's supporting affidavit was also found to be lacking in relevant detail regarding efforts to locate the original valuer or engage the wife on the new valuation. Consequently, the husband's application for leave was refused.