Simonsen & Simonsen

[2009] FamCA 698

FAMILY COURT OF AUSTRALIA

SIMONSEN & SIMONSEN [2009] FamCA 698

FAMILY LAW – PROPERTY – Value of property – Expert evidence

Family Law Act 1975 (Cth) s 79
Family Law Rules 2007, r 15.5.1, 15.49(2)

Bass & Bass (2008) FLC 93-366

APPLICANT: Ms Simonsen

RESPONDENT: Mr Simonsen

FILE NUMBER: BRC 7059 of 2008

DATE DELIVERED: 20 July 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 20 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr C J Forrest

SOLICITOR FOR THE APPLICANT: Murdoch Lawyers

COUNSEL FOR THE RESPONDENT: Mr M P Kent SC

SOLICITOR FOR THE RESPONDENT: Dixie Ann Middleton & Associates

Orders

1. The application to adduce evidence and/or produce the report from Mr C is refused.

IT IS NOTED that publication of this judgment under the pseudonym Simonsen & Simonsen is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 7059 of 2008

MS SIMONSEN

Applicant Wife

And

MR SIMONSEN

Respondent Husband

EX TEMPORE

REASONS FOR JUDGMENT

1. At the outset of the hearing of this matter, which is listed for two days before me and involves a dispute pursuant to section 79 of the Family Law Act between the parties to this lengthy marriage, the wife seeks to adduce evidence from an expert witness engaged by her in respect of the valuation of what I will call the parties’ rural business. 

2. That business has, among other things, been valued by a single expert witness, Mr B, nominated by the wife and appointed by agreement between the parties pursuant to an earlier order made by the court. 

3. The wife makes application, she says, pursuant to rule 15.5.1 of the Family Law Rules 2004. In fact, the application by her needs to be made pursuant to rule 15.49 of the Rules.

4. That rule provides relevantly that:

   If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.

5. Subrule (2) of that rule provides relevantly that:

   The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is established that:

   (c)there is another special reason for adducing evidence from another expert witness.

6. Mr Forrest, who appears as counsel for the wife, concedes that the subparagraph just referred to is the only relevant subparagraph relevant to the current application.

7. The expert evidence rules are contained in Part 15.5 of the Rules and were introduced in what was a significant change to the previously existing position, when those rules were promulgated in 2004. 

8. That Part of the rules has as its purpose, among other things, “to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness”.  Another purpose is to “avoid unnecessary…