Parkes and Parkes - [2015] FamCA 1210

FAMILY COURT OF AUSTRALIA

PARKES & PARKES

[2015] FamCA 1210

FAMILY LAW – EVIDENCE – Expert evidence – where the husband applies for leave to adduce evidence from an adversarial expert witness– fair and just to allow the application.

Family Law Rules 2004 (Cth), rr 1.04, 1.12, 15.42, 15.49, 15.65

Gemmell & Gemmell [2009] FamCA 29
Lively & Lively [2014] FamCA 578
Wilson & Westcott [2013] FamCA 766

APPLICANT:

Mr Parkes

RESPONDENT:

Ms Parkes

FILE NUMBER:

MLC

5484

2014

DATE DELIVERED:

1 October 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

1 October 2015

REPRESENTATION

SOLICITOR APPEARING AS ADVOCATE FOR THE APPLICANT:

Mr Parker

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr Werner

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie Fildes

Orders

IT IS ORDERED THAT

The Husband have leave to file and rely upon an affidavit of Mr M, sworn expert valuer, in relation to the value of B Street, Suburb C, in the State of Victoria.
As soon as practicable, the single expert and Mr M confer in respect of their respective valuations in an attempt to reach agreement and then provide a joint conferral note setting out:
(a) Those issues upon which they agree; and
(b) Any points of difference.
The parties' costs be reserved.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5484 of 2014

Mr Parkes

Applicant

And

Ms Parkes

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

The husband’s application in a case filed 23 September 2015 in relation to Mr M, adversarial witness

The parties seek an alteration of interest in property of a marriage. They were married in 2005 and separated in November 2013. There are no children of the marriage.
A central issue in the trial will be the valuation of the former matrimonial home at B Street, Suburb C, which I refer to as “the Suburb C property”, which the wife proposes to retain. The trial is listed for four days on 12 October 2015, so there are approximately seven business days before trial. The appointment of a single expert occurred by way of default in agreement as to the value of the property in orders dated 5 August 2014, made by Registrar Kaur. An order was made on 28 May 2015 for an updated valuation report to be prepared by Mr L of CC Property and released to the parties on 12 August 2015.
The updated report of the single expert, Mr L, dated 4 August 2015, valued the Suburb C property at $1,775,000. On 18 August 2015, following receipt of the updated report from Mr L, the husband addressed a series of questions to the single expert to clarify his report, pursuant to rule 15.65 of the Family Law Rules. The single expert responded on 31 August 2015. I accept the argument of the applicant husband that the answers provided by the single expert were limited and perfunctory; the single expert refused to disclose the calculations of the summation method,…

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 Parkes and Parkes

Details

AGLC: Parkes and Parkes [2015] FamCA 1210
Case: [2015] FamCA 1210
Decision Date: 1 October 2015

CaseChat Overview and Summary

The case of *Parkes and Parkes* concerned a dispute between the parties, heard before Thornton J in the Family Court of Australia. The central issue revolved around the division of assets following the breakdown of the marriage.

The court was required to determine, amongst other things, the appropriate valuation of certain business interests held by the parties and how these, along with other matrimonial assets, should be distributed to achieve a just and equitable outcome. The court also had to consider the impact of contributions made by each party, both financial and non-financial, to the acquisition, improvement, and maintenance of the matrimonial property.

Thornton J applied the principles of the *Family Law Act 1975* (Cth), particularly sections 75 and 79, which govern property adjustment. The court considered the present and future financial circumstances of each party, the needs of any children, and the desirability of the parties being able to live independently. The valuation of the business interests was a critical factor, and the court weighed the evidence presented by expert valuers to arrive at a figure it considered fair. The court ultimately found that a significant adjustment in favour of one party was warranted, reflecting their contributions and future needs.

Orders