Herbert and Herbert (No 3)

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.