Lange and Lange - [2013] FamCA 666

FAMILY COURT OF AUSTRALIA

LANGE & LANGE

[2013] FamCA 666

FAMILY LAW – EVIDENCE - Expert Evidence – Application by wife for leave to adduce evidence from adversarial expert – Leave granted subject to conditions

Family Law Act 1975 (Cth)

Toft & Royce [2013] FamCA 372
Bevan v Bevan [2013] FamCAFC 116

APPLICANT:

Mr Lange

RESPONDENT:

Ms Lange

FILE NUMBER:

MLC

7168

2011

DATE DELIVERED:

13 August 2013

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

13 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cherpis

SOLICITOR FOR THE APPLICANT:

Pearsons Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Lethlean

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers

Orders

The respondent wife have leave to adduce evidence from an adversarial expert
Ms B of C Accountants as to the value of the interest held by the husband in the companies D Pty Ltd and E Pty Ltd, if any, and the businesess conducted by each of those companies subject to:-
(a)such valuations being filed and served on or before 12.00 noon Friday 6 September 2013; and
(b)the wife meet the whole of the costs of such valuation, subject to any application for the husband to contribute either in part or in whole for those costs, at the conclusion of the hearing of the property proceedings.
Costs of both parties be reserved in respect of this application and IT IS NOTED the hearing on 13 September 2013 is to proceed.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lange v Lange (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: MLC 7168 of 2011

Mr Lange

Applicant

And

Ms Lange

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application in a case filed by the wife for leave to adduce evidence from an adversarial expert as to the value of the interest held by the husband in the companies D Pty Ltd and E Pty Ltd. The second part of that application is that the husband be ordered to borrow $30,000 to enable the wife to employ the adversarial expert that she nominates, namely Ms B.
These proceedings were listed before me for hearing of children and property matters some week or so ago in Melbourne. To the credit of the parties, the parenting aspects were resolved and the property proceedings were then to continue. The wife made an application for adjournment at the commencement of the property proceedings and that application was unsuccessful.
The husband commenced giving evidence and provided some evidence in chief. When the matter came back on later that day, after a significant delay, counsel for the wife indicated that the wife’s state was such that she could not adequately instruct counsel and counsel felt,…

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 Lange and Lange

Details

AGLC: Lange and Lange [2013] FamCA 666
Case: [2013] FamCA 666
Decision Date: 13 August 2013

CaseChat Overview and Summary

In the matter of *Lange and Lange*, Benjamin J of the Federal Circuit Court of Australia considered an application by the respondent wife for leave to adduce expert evidence concerning the valuation of the husband's interests in two companies, D Pty Ltd and E Pty Ltd, and the businesses they conducted. The core of the dispute revolved around the proper valuation of these assets for the purposes of property settlement proceedings.

The primary legal issue before the Court was whether to grant the wife leave to introduce evidence from an adversarial expert, Ms B of C Accountants, regarding the value of the husband's company interests. This required the Court to consider the principles governing the admission of expert evidence in family law proceedings, particularly where such evidence is sought late in the process or where its necessity and relevance are in question.

Benjamin J reasoned that allowing the wife to adduce this expert evidence was appropriate, subject to certain conditions designed to ensure fairness and manage the proceedings efficiently. The Court ordered that the valuations must be filed and served by a specified date and that the wife would initially bear the full costs of obtaining this evidence. However, the Court also preserved the wife's right to seek a contribution from the husband towards these costs at a later stage, indicating a balanced approach to the admission of potentially crucial, but costly, evidence. The costs of the application itself were reserved.

Orders

Orders of the court

The respondent wife have leave to adduce evidence from an adversarial expert

Ms B of C Accountants as to the value of the interest held by the husband in the companies D Pty Ltd and E Pty Ltd, if any, and the businesess conducted by each of those companies subject to:-

(a) such valuations being filed and served on or before 12.00 noon Friday 6 September 2013; and

(b) the wife meet the whole of the costs of such valuation, subject to any application for the husband to contribute either in part or in whole for those costs, at the conclusion of the hearing of the property proceedings.

Costs of both parties be reserved in respect of this application and

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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