Green and Morgan
[2010] FMCAfam 1514
•27 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GREEN & MORGAN | [2010] FMCAfam 1514 |
| FAMILY LAW – Dispute about letter appointing valuer. |
| Family Law Rules 2004, Reg.15.5 |
| Applicant: | MR GREEN |
| Respondent: | MS MORGAN |
| File Number: | SYC 4161 of 2009 |
| Judgment of: | Altobelli FM |
| Hearing date: | 27 May 2010 |
| Date of Last Submission: | 27 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 27 May 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Shevket |
| Solicitors for the Respondent: | Mr Serisier |
ORDERS
Pursuant to Order 4 made on 13 January 2010, the letter to the single joint expert will be in terms of the draft letter being annexure B to the written submissions filed on behalf of the husband in this matter.
I reserve the costs of both parties and I stand this matter over for mention on 26 August 2010 at 9.30am.
IT IS NOTED that publication of this judgment under the pseudonym Green & Morgan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4161 of 2009
| MR GREEN |
Applicant
And
| MS MORGAN |
Respondent
REASONS FOR JUDGMENT
On 13 January 2010 I made certain orders, the relevant one for present purposes is order 4. It clearly articulates the purpose of the order and that is to value both of the husband’s businesses. The aim of the exercise was, therefore, rather simple, but to a certain extent I think both parties have lost sight of this. It has become, regrettably for the husband and wife, an expensive exercise in point scoring, finger pointing and pernickety posturing. I really wonder whether someone has lost the plot here. I cannot work out whether it is the husband and wife who are locked in a personal battle or whether it is their respective lawyers. Maybe everyone should take a deep breath and ask themselves that question. This relatively simple exercise, drafting a letter to appoint a valuer to value two businesses has, in my opinion, been blown right out of all proportion.
The applicable law is found at Part 15.5 of the Family Law Rules. A single joint expert was appointed to deal with the discrete issue, valuation. The issue the single joint expert has been asked to resolve is not non-disclosure or other alleged perfidious behaviours. The role of the single joint expert is not to gather or endorse evidence to support one party’s assertion of alleged perfidious behaviour. The role of the single joint expert is to provide expert evidence on one issue only, and that is valuation. Rule 15.54(2) paragraph (c) provides that:
Full and frank disclosure of information and documents that will help the expert witness to perform the expert’s function must be included in a letter of instructions. The expert witness may request further information that is implicit in the Rules, but in any event, rule 15.60 enables a single joint expert to actually seek orders in this regard.
There is a separate regime for asking questions of a single joint expert but that is once the report has been prepared and, of course, this is found in rule 15.65 to rule 15.67. The party asking the question must pay the single joint expert for this. The draft letter prepared by the solicitor for the wife, which is attachment A in the husband’s submissions, does not comply with the Rules. It contains irrelevant, extraneous content that goes beyond the scope of the letter instructing a single joint expert to value a business. It contains inflammatory and subjective assertions of fact that are not properly to be found in a letter engaging a single joint expert. It is not the role of a letter engaging a single joint expert to address the specific “concerns” of the wife, to quote what was contained in the letter.
These are matters best dealt with as specific questions once the report has been prepared. I agree with almost all of the criticisms made of this letter by the solicitor for the husband. I prefer the form of letter proposed by the solicitor for the husband, being the annexure B in the husband’s submissions. An issue of costs arises. The costs of this application are reserved to the final hearing. If, as the wife asserts, the husband has been engaging in non-disclosure, then it would be quite inappropriate to order her to pay the costs of this application. If it turns out that he has not been engaged in non-disclosure, then it is likely that she will be ordered to pay the costs of this application.
I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 19 May 2011
0
0
1