Owens and Owens - [2014] FamCA 933

FAMILY COURT OF AUSTRALIA

OWENS & OWENS

[2014] FamCA 933

FAMILY LAW – PROPERTY – Value of Property – Expert Evidence – single expert appointed to value former matrimonial home – husband obtained a second valuation – significant difference between two valuations - where husband sought leave to rely on separate adversarial evidence – whether substantial body of contrary opinion – administration of justice – orders made for the parties to jointly instruct a third expert.

Family Law Rules 2004 (Cth) r 15.49, 15.45

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Commonwealth v Milledge (1953) 90 CLR 153
Elsey & Elsey (1997) FLC 92-727
Knight & Knight [2007] FamCA 263
Lenehan & Lenehan (1987) FLC 91-815
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Spencer v The Commonwealth of Australia (1907) 5 CLR 418
Turnley & Turnley [2005] FamCA 584

APPLICANT:

Mr Owens

RESPONDENT:

Ms Owens

FILE NUMBER:

ADC

3402

2011

DATE DELIVERED:

31 October 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

28 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richards

SOLICITOR FOR THE APPLICANT:

Barnes Brinsley Shaw Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Dickson

SOLICITOR FOR THE RESPONDENT:

Belchamber Legal

Orders

That at their joint and equal expense the parties use their best endeavours to nominate and jointly instruct an agreed single expert valuer to undertake a valuation of the property situate at V Street, Suburb P on or before 4pm on Wednesday 5 November 2014, but in any event no later than 4pm on Friday 7 November 2014.
That the nominated single expert be provided with the following documents at the joint and separate election of the parties:-
(a)       A joint letter of instruction;
(b)       Affidavit of Janet Belchamber filed 10 October 2014;
(c)       Affidavit of Mr C filed 16 October 2014;
(d)       Copy of correspondence comprising Exhibit 8.
That if requested by the appointed single expert, the mother will at the earliest possible opportunity facilitate the inspection of the P property without hindrance.
The interim proceedings are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Owens & Owens 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 ADELAIDE

FILE NUMBER: ADC 3402 of 2011

Mr Owens

Applicant

And

Ms Owens

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The parties are currently part-heard in a trial in respect of property issues due to recommence on 10 November 2014.
There is a significant dispute between the parties as to the value of assets and liabilities that represent the interests of each of the parties in property. It is not controversial that the value of the jointly owned former matrimonial home situate at V Street, Suburb P is easily the most valuable asset of the parties. Whilst there remains a dispute between the parties as to the value of the husband’s interest in a…

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 Owens and Owens

Details

AGLC: Owens and Owens [2014] FamCA 933
Case: [2014] FamCA 933
Decision Date: 31 October 2014

CaseChat Overview and Summary

In the matter of *Owens and Owens*, Berman J of the Family Court of Australia was required to determine applications concerning the valuation of a property located at V Street, Suburb P. The proceedings involved a dispute between the parties regarding the steps to be taken for the valuation of this asset.

The central legal issue before the court was how to proceed with obtaining an independent valuation of the jointly owned property. This involved determining the process for appointing a single expert valuer and the documentation to be provided to that expert. The court also considered the dismissal of interim proceedings.

Berman J ordered that the parties, at their joint and equal expense, use their best endeavours to nominate and jointly instruct a single expert valuer. The nominated expert was to be provided with a joint letter of instruction, specific affidavits, and a copy of certain correspondence. The mother was directed to facilitate an inspection of the property if requested by the expert. The court further ordered that the interim proceedings be dismissed.

Orders

Orders of the court

That at their joint and equal expense the parties use their best endeavours to nominate and jointly instruct an agreed single expert valuer to undertake a valuation of the property situate at V Street, Suburb P on or before 4pm on Wednesday 5 November 2014, but in any event no later than 4pm on Friday 7 November 2014.

That the nominated single expert be provided with the following documents at the joint and separate election of the parties:-

(a) A joint letter of instruction;

(b) Affidavit of Janet Belchamber filed 10 October 2014;

(d) Copy of correspondence comprising Exhibit 8.

That if requested by the appointed single expert, the mother will at the earliest possible opportunity facilitate the inspection of the P property without hindrance.

The interim proceedings are dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.