Herbert and Herbert (No 3) - [2019] FamCA 1060

FAMILY COURT OF AUSTRALIA

HERBERT & HERBERT (NO. 3)

[2019] FamCA 1060

FAMILY LAW – PROPERTY – Where at the commencement of the trial in this matter, the wife made an oral application for leave to rely upon an adversarial expert report in respect of the valuation of an accounting business operated by the husband and wife – Where the report is a critique of the first report and comes up with a higher figure – Where the wife did not take the opportunity to ask questions of the first report writer as allowed for in previous Court orders – Where in all of the circumstances, it is not appropriate for the evidence to allowed to be adduced and the application is dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Simonsen & Simonsen [2009] FamCA 698

APPLICANT:

Mr Herbert

RESPONDENT:

Ms Herbert

INDEPENDENT CHILDREN’S LAWYER:

Lyrene Wiid

FILE NUMBER:

BRC

4902

2017

DATE DELIVERED:

29 July 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

29 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr George

SOLICITOR FOR THE APPLICANT:

Rosen Lawyers

THE RESPONDENT:

Self-Represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Slade Jones

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Wiid
Lyrene Wiid Lawyer & Migration Agent

Orders

That the wife’s oral application for leave to read and rely upon an adversarial expert report be dismissed.
That the single expert witness, Mr T, be provided with a copy of the HH Accountants report, at least 24 hours before he gives evidence at the trial of this matter.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Herbert & Herbert has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4902 of 2017

Mr Herbert

Applicant

And

Ms Herbert

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

These are property adjustment proceedings and parenting proceedings between Mr Herbert and Ms Herbert that were commenced in the Court in 2017 and have progressed through a number of interim hearings and what is summarily described as judge management in the lead up to listing of the matter for trial. The trial is listed to commence before me this morning at 10.00 am and to be of five days’ duration.
From the evidence that I have read and my knowledge of the case gleaned from my involvement in it since last year, I understand that perhaps the largest single item of property of the parties or…

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 Herbert and Herbert (No 3)

Details

AGLC: Herbert and Herbert (No 3) [2019] FamCA 1060
Case: [2019] FamCA 1060
Decision Date

CaseChat Overview and Summary

These are property adjustment and parenting proceedings between Mr Herbert (applicant) and Ms Herbert (respondent). The central dispute concerned the valuation of an accounting practice operated by the parties, which constituted a significant asset. The matter came before Forrest J of the Family Court of Australia.

The primary legal issue before the court was whether to grant the wife leave to rely upon an adversarial expert report valuing the accounting business, which was a critique of the initial single expert report. This application was made orally at the commencement of the trial. The court was required to consider the wife's compliance with the Family Law Rules 2004 (Cth), specifically rule 15.49, which governs the adducing of evidence from an expert witness when a single expert has already been appointed.

Forrest J dismissed the wife's application. His Honour reasoned that the wife had not satisfied the preconditions under rule 15.49(2) for the court to grant leave. Specifically, the court was not satisfied that there was a substantial body of contrary opinion, that the adversarial expert possessed knowledge unknown to the single expert, or that there was any other special reason to admit the report. The court noted that the wife had ample opportunity to question the single expert or make a timely application, and that allowing the report at this late stage would be unfair to the husband. However, the court directed that the single expert witness be provided with a copy of the adversarial report at least 24 hours before giving evidence.

Orders