Nold and Nold

[2008] FamCA 38

FAMILY COURT OF AUSTRALIA

NOLD & NOLD [2008] FamCA 38

FAMILY LAW – PROCEDURE – Single Expert Witness – Order for the appointment of an adversarial witness

Family Law Act1975 (Cth)

APPLICANT: MR NOLD

RESPONDENT: MRS NOLD

FILE NUMBER: MLF 785 of 2005

DATE DELIVERED: 24 January 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P.N. Crofts

SOLICITOR FOR THE APPLICANT: Westminster Lawyers

COUNSEL FOR THE RESPONDENT: Mr P. Davis

SOLICITOR FOR THE RESPONDENT: Berger Kordos

Orders

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the husband engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the ruling and judgment of the Honourable Justice Cronin delivered this day will for all publication and reporting purposes be referred to as Nold & Nold.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 785 of 2006

MR NOLD

Applicant

And

MRS NOLD

Respondent

RULING and REASONS FOR JUDGMENT

RULING 10.40am-10.44am

1. This is a case where I do propose to allow the evidence of Mr B to be called as an adversarial witness.  The rules are quite clear that to enable a party to call an adversarial witness it normally requires them to establish that there is an amount of expertise; a special body of opinion that requires that evidence to be called or that the single expert witness is unaware of the particular issue.  That is not the case here. 

2. The dilemma seems to me to arise out of the third leg of that particular rule that requires me to consider the question of justice.  In circumstances where there is a relatively modest pool of assets, the dollar difference between what the view of the single expert witness and that which might be called from an adversarial witness, is extraordinary.  The evidence I am told is about the subjective views of the experts.

3. There is a substantial amount of money involved and I am not determining this particular ruling on the basis of the question of whether or not the wife will or will not be able to buy the property.  I am determining it on the basis of having some difficulty in assessing what the pool of assets is. 

4. It seems to me, having regard to the vast difference between the two sums, the party who was not permitted to call evidence to test that particular issue other than by cross-examination might rightly say that the end result under s 79 was that there was not a just and equitable outcome.  It is an unusual situation to have a property where the parties are that far apart and, as I said in the reported case of Billington, if it is a subjective judgment, normally that can be tested by cross-examination.

5. The two things I want to say about Billington, however, are that there was a substantial pool of assets and the difference in that case did not make a huge difference.  I subsequently had to deal with the final matter on a trial some months later where, as a result of my ruling, the party who wanted to bring in the adversarial witness was unable to do so and had to rely upon cross‑examination and I found that issue had made the trial more difficult.

6. It seems to me that this is a case where I can obviate some of those difficulties by simply hearing the evidence and making the determination in circumstances where both parties know the risk that they run is that in the end I might end up being unable to decipher which of the two values is right, in which case the best way to find out is to test the market.

7. Accordingly, I rule that the evidence of Mr B can be filed and be admitted into evidence for the purposes of the trial.

Judgment 3.07pm – 3.11pm

1. This is a matter in which the parties have come before the court today, in respect of both property matters and financial child support matters.  The issue predominantly was the division of property and the stumbling block to the determination of that matter seemed to be the question of valuation.  The husband is a 48-year-old manager and the wife a 40-year-old mother of two young children aged almost 11 and 7.  They have a relationship of about 11 or so years.

2. I have had the advantage of looking at what happened over those 11 years in the affidavit material which I compliment the parties and their lawyers on for being succinct and not dragging into areas they did not need to go.  It seems quite clear that in the end the outcome of this case has, what might be loosely described as, a "commercial reality" about it all and, as I indicated to the parties earlier today, no-one could really predict with any certainty what was going to happen.

3. I am very comfortable with the outcome of this case.  I am satisfied to say that not only is it within the range of possible outcomes but I am also more than satisfied to say that it is just and equitable.  In respect of the child support matters the only issue between the parties related to some extra expenses that needed to be sorted out so that their children can have the benefit of an education which they should be entitled to having regard to the fact that their parents have some degree of affluence.  I congratulate them both for coming to the decision that they have.

I certify that the preceding Ten (10) paragraphs are a true copy of the ruling and reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  4 February 2008