Raine and Creed (No. 2)

[2013] FamCA 651

FAMILY COURT OF AUSTRALIA

RAINE & CREED (NO. 2) [2013] FamCA 651

FAMILY LAW – EVIDENCE – Admission into evidence of an affidavit

Family Law Act 1975 (Cth)

APPLICANT: Ms Raine

RESPONDENT: Mr Creed

FILE NUMBER:	SYC	2012	of	2011
DATE DELIVERED:	12 February 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 11, 12 and 13 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Abrams Turner Whelan Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Schonell SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

1. That I decline to admit the affidavit by Mr R into evidence. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Raine & Creed (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 SYDNEY

FILE NUMBER:  SYC 2012 of 2011

Ms Raine

Applicant

And

Mr Creed

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally

2. On the first day of the hearing counsel for the wife sought to read an affidavit of a real estate valuer, Mr R.  Mr R had been instructed to conduct a retrospective valuation of the former matrimonial home as at the date of its sale.  He was asked to assume that, as at the date of the sale, the property had not been renovated, extended or styled.

3. There is, of course, abundant evidence in this matter that the property had been extensively renovated, extended and styled.  In order to assist him to conduct this valuation Mr R was provided with plans, photos and other instructions from the wife. 

4. I do not think the affidavit is admissible essentially for four reasons.

5. Firstly, Mr R did not inspect either the unrenovated home or the renovated home.  He made an external inspection only.  This is not, of course, a criticism of him as he was not able to gain access to the property because it had been sold.  Mr R has relied upon plans and photographs and instructions from the wife to determine its original condition.  Even if all these instructions are established, and I am far from certain that they are presently established, the finding of the nature of the original condition of the home involves a considerable degree of speculation.

6. Secondly, Mr R used a direct comparison means of valuation for each of the properties and used for that purpose the values of other properties said to be in superior internal condition.  Mr R does not say how he discounted those sales so as to allow for that superior and, quite obviously, markedly different condition.  Without an explanation how he did so, I am not satisfied how he has brought his expert knowledge to bear on this issue.  Again, it seems a considerable degree of speculation is involved.

7. Thirdly, the apparent point of the valuations is to demonstrate that the renovations were responsible for the difference in value between the actual sale price and the valuation.  It assumes that the parties lived in the house in poor condition for several years.  The valuation purports to take to take into account the lack of renovation, extension and styling.  I do not see how this can be done without considering the interior of the property and to consider precisely the nature of the renovations, extensions and styling.

8. Fourthly, the wife does not assert in her balance sheet that the increase in the value should be attributed to her as an asset or an add-back.  I apprehend that it is not an issue that the wife spent considerable time and effort on the renovations to the benefit of the parties being their financial benefit and also their comfort.

9. For these reasons a precise value of that contribution is not to be assessed simply by the monetary increase in value.  It is not suggested the wife was responsible for the costs of the renovation and therefore was responsible entirely for that increase in value.

Conclusion

1. In those circumstances the valuation arrived at by Mr R is not ultimately relevant to the issue in these proceedings and I decline to admit it into evidence. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 12 February 2013.

Associate:

Date: 27 August 2013