Hawford and Hawford

[2011] FamCA 569

FAMILY COURT OF AUSTRALIA

HAWFORD & HAWFORD [2011] FamCA 569

FAMILY LAW – EVIDENCE – Expert evidence – where the husband applied for leave to use an adversarial expert – where the husband applied for an adversarial expert to give evidence by telephone – where the parties dispute sharing the cost of obtaining a joint expert report

Family Law Act 1975 (Cth)

APPLICANT: Mr Hawford

RESPONDENT: Ms Hawford

FILE NUMBER: BRC 10919 of 2010

DATE DELIVERED: 15 July 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 15 July 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Nita Stratton-Funk of Nita Stratton-Funk & Associates

SOLICITOR FOR THE RESPONDENT: Mr Bruce Dulley of Jones Mitchell Solicitors

Orders

1. The Applicant Husband have leave to rely upon an adversarial expert in respect of the valuation of the boat.

2. The Applicant Husband have leave to adduce the evidence of the adversarial expert by telephone at the trial on 25 August 2011 provided that the witness gives such evidence from a place within Australia.

3. In the first instance, the parties are to share the costs of obtaining a joint expert valuation of the boat by M Valuers with responsibility for those costs to be reserved for determination at trial.

4. Each party do all acts and things reasonably necessary to obtain the valuation by M Valuers and in the case of the Husband that he take all steps reasonably available to him to secure the cooperation of Mr S.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC10919/2010

Mr Hawford

Applicant

And

Ms Hawford

Respondent

REASONS FOR JUDGMENT

Ex Tempore Reasons

1. The trial of the property and spousal maintenance proceedings in this matter is set down to be heard on the 25^th of August 2011. The preliminary issue that I am to decide today is the Husband’s Application brought as an Application that he be permitted to rely upon an expert valuer of a boat by telephone evidence of that expert pursuant to Rule 16.05 of the Rules. Under that Rule, the affidavit in support of the Application has certain requirements; in this instance Ms Stratton-Funk relies upon an affidavit by her filed in support of that Application. One of the matters omitted from that affidavit is to specify from where the witness will be giving telephone evidence on the relevant occasion. I am told from the bar table by Ms Stratton-Funk that the witness expects to be within Australia on the 25^th of August 2011, but can’t provide a guarantee to that effect at this stage.

2. In truth, there has been no permission for an adversarial expert, so I permitted an oral application to be made by Ms Stratton-Funk on behalf of the Husband pursuant to Rule 15.52 to rely upon an adversarial expert. In response to those applications, the Wife, via her representative Mr Dulley on this occasion, raises no real opposition to the permission for an adversarial expert or any real opposition to the evidence being given by telephone, but she says that she would also seek to have the appointment of a single expert, namely M Valuers, to undertake a valuation of the boat. In respect of the Husband’s applications then, it seems to me that I ought allow permission for the adversarial expert and I also would be minded to allow that expert to give evidence by telephone on the trial on the 25^th August 2011, subject only to the qualification that we would need to ensure that the witness is present in a location, namely within Australia, rather than in a foreign country, that does not complicate the matter in terms of the further requirements that would need to be met in the event that he is overseas on the 25^th of August 2011. It seems to me that aspect of the matter can be dealt with at the outset of the trial.

3. In relation to M Valuers undertaking a joint expert report, it seems to me that’s a sensible course. The issue between the parties is as to who should pay for that report, it being the Wife’s position that the parties should share the expense of that report, whilst it is the Husband’s position that he, having already provided expert evidence, should not pay for it again. The Husband says that following a directions hearing in this Court when the parties were each acting for themselves, there was an exchange of e-mails where he sought in compliance with those directions to obtain the Wife’s co-operation in obtaining a single expert. Be that as it may, it seems to me that the issue of cost should really be addressed at the trial, because I don’t know at this stage, and no-one knows, what the further expert evidence might be in terms of valuation. It may well be that that expert comes up with a similar figure to the expert of the Husband, but at this stage that’s unknown. It seems to me to be a reasonable approach to reserve the question of the costs of that further expert to the trial, although to meet the costs at this stage, it should be directed that both parties be responsible to fund the M Valuers valuation which I am informed will cost $750.00 plus GST plus any travelling costs, the latter being unlikely to be of much moment given that the valuer is based in Brisbane and I am told from the bar table the boat is located in Brisbane.

4. On that basis, the Orders will be that the Husband have permission pursuant to Rule 15.52 to rely upon his adversarial expert in relation to the valuation of the boat, subject to the qualification I have expressed, that expert can give evidence by telephone on the 25^th of August 2011, that both parties fund in the first instance M Valuers to undertake a further valuation with the question of the cost of that latter valuation to be reserved to the trial.

5. I will further direct both parties to do all acts and things reasonably necessary to facilitate the valuation by M Valuers, and in the case of the Husband, that he do all acts and things he reasonably can to secure the co-operation of Mr S in relation to obtaining that valuation.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 15 July 2011.

Associate: 

Date:  22 July 2011