In some family law matters where the value of an item is in dispute or unknown, the Court, one party or both parties, may require evidence from an expert to assist them in determining the value of the item.
Who prepares a valuation will depend on the specific asset being valued. Some common examples of items that may need to be valued include real estate, companies, superannuation or other personal property such as prestige cars, jewellery or artwork.
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“FCFCA Rules”) sets out the rights and duties of an expert.
Due to the varied opinions of experts which may arise out of different valuing methods or assumptions, it is the Court’s preference to appoint what is known as a single expert who:
- is jointly agreed to by the parties;
- has been jointly instructed in writing as to the matters relevant to the valuation; and
- has been jointly instructed as to how the valuation is to be formulated.
The FCFCA Rules sets out the purpose of expert evidence so as to:
- Ensure that parties only obtain expert evidence about significant issues in dispute;
- Restrict expert evidence to that which is necessary to resolve or determine a significant relevant issue;
- Ensure that, if practicable and without compromising the interest of justice, expert evidence is given on an issue by a single expert witness;
- avoid unnecessary costs arising from the appointment of more than oneexpert witness; and
- enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interest of justice.
If the parties cannot agree on a single expert, or a party wishes to rely on a report commissioned by one party only, the party seeking to rely on that expert report is required to file an Application in a Proceeding supported by an Affidavit which sets out the facts relied upon in relation to the valuation report. The Court will then determine whether to grant leave for a party to rely on this evidence.