Lively & Lively - [2014] FamCA 578

FAMILY COURT OF AUSTRALIA

LIVELY & LIVELY

[2014] FamCA 578

FAMILY LAW – PROPERTY – where the wife seeks to adduce evidence from an adversarial expert in relation to two properties – where a single expert witness has previously been appointed by consent – where the father opposed that application – where the provisions of Rule 15.49(2) of the Family Law Rules 2004 were satisfied in respect to one of the properties– where the single expert and adversarial expert are to participate in a joint conference.

Family Law Rules 2004

APPLICANT:

Ms Lively

RESPONDENT:

Mr Lively

FILE NUMBER:

SYC

953

2013

DATE DELIVERED:

21 July 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

21 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr R. Schonell SC

SOLICITOR FOR THE APPLICANT:

Karras Partners

COUNSEL FOR THE RESPONDENT:

Mr Campton

SOLICITOR FOR THE RESPONDENT:

Family Law Solutions

Orders

Leave be granted to the wife to adduce alternate property valuation evidence from Mr. Mr B of C Valuers, such evidence to be limited to the current fair market value of the property known as D Street, Suburb F.
Mr. B and Mr. G participate as soon as possible in a joint conference with the aim of, as soon as is practicable, producing a joint statement setting out in summary form the points of agreement and differences between them and why the view of one expert should be preferred over the view of another. If there is a remaining controversy between them, they are to give concurrent evidence during the hearing.
In the event that Mr. G is to be cross examined by the wife about his opinion in respect of the value of I Town, that notice should be given as soon as is practicable.
In the event that either party intends to take objections to the report of either expert, they are to serve those objections with the case summary (by close of business Wednesday 23 July 2014).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lively & Lively 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 SYDNEY

FILE NUMBER: SYC 953 of 2013

Ms Lively

Applicant

And

Mr Lively

Respondent

REASONS FOR JUDGMENT

The wife filed an application in a case on 16 July 2014 to be granted leave pursuant to the Family Law Rules 2004 (“the Rules”) to adduce evidence from another expert in relation to valuation of two properties: one at D Street, Suburb F (“the Suburb F property”); the other at H Street, I Town (“the I Town property”). The Rules provide that the Court may allow a party to adduce evidence from another expert witness on the same issue if (a) it’s satisfied that there is a substantial body of opinion contrary to an opinion given by the single expert and that that contrary opinion is or may be…

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 Lively & Lively

Details

AGLC: Lively & Lively [2014] FamCA 578
Case: [2014] FamCA 578
Decision Date: 21 July 2014

CaseChat Overview and Summary

In the matter of *Lively & Lively*, Watts J considered an application by the wife concerning property valuation evidence in family law proceedings. The dispute centred on the valuation of certain assets, specifically a property located at D Street, Suburb F, and another at I Town.

The primary legal issues before the court were whether to grant the wife leave to adduce further expert evidence regarding the valuation of the D Street property, and how to manage the existing expert evidence concerning the valuations of both properties to facilitate a just and efficient resolution of the financial proceedings. The court also considered the procedure for dealing with objections to expert reports and the potential cross-examination of an expert.

Watts J granted the wife leave to adduce alternate property valuation evidence from Mr. B of C Valuers, limiting this evidence to the current fair market value of the D Street property. The court directed that Mr. B and Mr. G, the other expert involved, should participate in a joint conference to identify areas of agreement and disagreement in their valuations, and to provide reasons for preferring one expert's view over another. The court further ordered that if any controversy remained, the experts were to give concurrent evidence at the hearing. Directions were also given regarding notice for cross-examination of Mr. G and the service of objections to expert reports.

Orders

Orders of the court

Leave be granted to the wife to adduce alternate property valuation evidence from Mr. Mr B of C Valuers, such evidence to be limited to the current fair market value of the property known as D Street, Suburb F.

Mr. B and Mr. G participate as soon as possible in a joint conference with the aim of, as soon as is practicable, producing a joint statement setting out in summary form the points of agreement and differences between them and why the view of one expert should be preferred over the view of another. If there is a remaining controversy between them, they are to give concurrent evidence during the hearing.

In the event that Mr. G is to be cross examined by the wife about his opinion in respect of the value of I Town, that notice should be given as soon as is practicable.

In the event that either party intends to take objections to the report of either expert, they are to serve those objections with the case summary (by close of business Wednesday 23 July 2014).

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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