HETT & SEER
[2019] FamCA 362
•4 June 2019
FAMILY COURT OF AUSTRALIA
| HETT & SEER | [2019] FamCA 362 |
| FAMILY LAW – EVIDENCE – Where the Husband provided a valuation for a property jointly held by the parties in City D, China – whether the Husband’s valuation was admissible evidence – where the valuation is an opinion – whether the valuation was an expert opinion – where the Husband is a real estate agent – where the Husband claims he has specialised knowledge based on his experience, study and training as a real estate agent – whether the valuation was an admission and thus an exception to the opinion rule – where the valuation cannot be construed to be an admission – where the evidence is found to not be admissible. |
| Evidence Act 1995 (Cth) ss 55, 76, 79,81 and 142 |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Frederick & Frederick [2019] FamCAFC 87 |
| APPLICANT: | Mr Hett |
| RESPONDENT: | Ms Seer |
| FILE NUMBER: | CAC | 1020 | of | 2018 |
| DATE DELIVERED: | 4 June 2019 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 4 June 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr C Othen |
| SOLICITOR FOR THE APPLICANT: | Watts McCray Lawyers |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
Orders
The Husband’s valuation of the property jointly held by the parties in City D, China, is not admissible as evidence.
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 Hett & Seer 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 CANBERRA |
FILE NUMBER: CAC 1020 of 2018
| Mr Hett |
Applicant
And
| Ms Seer |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
A central issue in this undefended case is as to the value of property jointly held by the parties in China, in City D. The only evidence as to the value of that property before me comes from the Husband in two forms. The first is an assertion, for example, as seen in his Financial Statement, and the second is an opinion offered on a basis expressed by the Husband as:
a)being given as he works in the real estate industry in Australia; and
b)on the basis of what he has determined from his access to five widely used and prominent websites in order to establish a square metre value range and then to calculate the value of the property in City D.
Despite this case being undefended the issues still require determination based upon admissible evidence.
The first threshold to be crossed by the Husband's assertions as to value is that of relevance.
Section 55 of the Evidence Act 1995 (Cth) (Evidence Act) poses the matter in this way. It says:
if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings.
The Husband's assertion passes the relevance threshold. If his evidence as to value is accepted, it bears upon the assessment of the value of the Chinese property.
The question then arises as to whether or not the material is otherwise admissible. Whether the assertion appears in the Financial Statement, or in the affidavit, it is the expression of an opinion. That opinion is expressed at its highest within his affidavit and I will concentrate the ruling upon that expression of the opinion.
Section 76 of the Evidence Act generally excludes opinion evidence subject to exceptions. The exception identified here is that contained at s 79 that is, the assertion that what is presented by the Husband is an expert opinion, being opinion wholly or substantially based upon specialised knowledge based on a person's training, study or experience.
The opinion as to the value to be assigned to the Chinese real estate would generally be understood as the value of that real estate and an arm's-length disposal.
In selecting a mechanism the Husband has relied upon his status as a real estate agent. That status does not equate to training, or study, or experience that is capable of determining the means by which a value should be attributed to this particular property in City D. While the means has been articulated by the Husband, his experience, study and training as a real estate agent, the extent of which is not disclosed, does not speak to the applicability of that methodology to this unit in City D. That is, I cannot be satisfied that the opinion and the selection of methodology upon which the opinion is based is based upon a relevant expertise.
That was the highest expression of the Husband's expertise and if the admission relies upon this it fails.
I was then helpfully pointed by Mr Othen of counsel to the recent Full Court case of Frederick & Frederick[1] which dealt with assertions as to value made by a party and which were construed in that case to be admissions and thereby an exception to the opinion rule pursuant to s 81 of the Evidence Act. Section 81(1) relevantly says:
The hearsay rule and the opinion rule do not apply to evidence of an admission.
[1] [2019] FamCAFC 87.
In that case the Full Court observed in applying s 81 to the circumstances of this case as follows at [39]:
We consider that, generally speaking, a person can give some evidence by way of admission as to the value of real estate owned by them which can be accorded weight, notwithstanding such weight might be very much less than the weight given to that of a professional valuer, for example. The ordinary common experience of people is that where they own only a few significant assets such as cars and houses, they are well aware of the purchase price and have some knowledge, obtained from a variety of sources, about their value.
I note the caveat placed by the Full Court on that observation is that it was made only “generally speaking”. That is, the observation did not give carte blanche for the use of assertion as to value. It was limited in that judgment and is limited by the Evidence Act to admissions. Again, helpfully by Mr Othen, I was directed to the dictionary to the Evidence Act which describes admissions in the following terms
admission means a previous representation that is:
(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and
(b) adverse to the person’s interest in the outcome of the proceeding.
It is necessary then, in order for the assertion to be construed as an admission and meet the exception under s 81, that the previous representation at the time of its admission be adverse to the person's interest. The question then arises in the assertions as to value in this case admissions is whether they are adverse to the Husband's interest in the outcome of the proceedings. The answer to that question is a factual question, which governs the admission of the material.
Section 142 of the Evidence Act deals with the standard of proof in relation to facts which govern admissibility. Section 142 says as follows
(1)Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding:
(a)a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not; or
(b)any other question arising under this Act;
have been proved if it is satisfied that they have been proved on the balance of probabilities.
(2)In determining whether it is so satisfied, the matters that the court must take into account include:
(a)the importance of the evidence in the proceeding; and
(b)the gravity of the matters alleged in relation to the question.
That is, it is necessary to determine, for the admission of this material, on the balance of probabilities whether the valuations ascribed by the Husband constitute admissions. That is, whether they are adverse to his interest in the case. In doing so, I am to take into account the importance of that evidence in the proceedings. It may be perceived to be of great importance. That calls in to play the sorts of consideration set out in Briginshaw v Briginshaw.[2] Here, the question of whether the asserted value is adverse to the Husband's interests is unable to be determined in his favour. Any value assigned to the property enhances his prospects of success regarding a particular part of this application which is to retain another property, an item of real estate in Suburb G in which he currently lives.
[2] (1938) 60 CLR 336.
Such an outcome will not always be the consequence of an assertion. In many cases, as observed in Frederick, such an assertion will be an admission as it will operate to some extent to be adverse to the interests of that party in the proceedings.
There are not circumstances in this case that point to it being contrary to his interests and so it cannot be construed to be an admission and so the evidence of the Husband's valuation will be excluded.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 4 June 2019.
Associate:
Date: 5 June 2019
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