Wender & Wender

[2017] FamCAFC 48

FAMILY COURT OF AUSTRALIA

WENDER & WENDER [2017] FamCAFC 48

FAMILY LAW – APPEAL – PROPERTY – Where the wife argues that the trial judge erred in not applying the Federal Circuit Court Rules and instead applied the Family Law Rules to the question of whether an alternative valuation should be admitted – Where the wife further argues that in not allowing another expert report to be admitted into evidence the trial judge’s decision amounted to a denial of procedural fairness – Where there was no error in the trial judge’s decision in applying the Family Law Rules – Where the order for the appointment of a single expert witness was made by consent and the parties agreed upon the single expert – Where the wife made oral application to admit the report of a second expert after her case had been closed – Where admission of the second report would have necessitated the calling of further evidence and a further adjournment would have been required – Where it was plainly open to the trial judge to refuse the wife’s oral application – Where there was no lack of procedural fairness and the trial judge exercised her discretion appropriately – Where the wife disagreed with the value attributed to the husband’s business by the single expert and sought to rely on an alternative valuation report – Where the single expert accepted the methodology used in the alternative report and suggested it was “essentially” the same as his with a few “minor changes” – Where the two methodologies could not have been more different and the trial judge plainly failed to appreciate that – Where the expert valuer took into account the personal circumstances of the husband, namely his age, health and intention not to work longer than five years – Where these are not matters to be taken into account in valuing the business – Where a major flaw in applying the concept of “value to the owner” here is that the value arrived at is less than market value yet the husband could sell the business for its market value – Where the trial judge failed to address the inappropriate application of the “value to the owner” methodology – Where the trial judge erred in accepting the valuation of the single expert and the appeal must be allowed to that extent – Where plainly there needs to be further evidence presented – Where it is not appropriate to re-exercise the discretion – Appeal allowed in part and remitted for rehearing by a judge other than the trial judge.

FAMILY LAW – CROSS-APPEAL – PROPERTY – Where Grounds 1, 2 and 3 have no merit – Where there is merit in Ground 4 as a result of the partial success of the appeal – Where it is appropriate to remit for rehearing the question of the costs of the valuations – Cross-Appeal allowed in part and remitted for rehearing by a judge other than the trial judge.

FAMILY LAW…