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If a couple negotiating their financial deal cannot agree upon the value of an asset that one or both wish to retain, the Australian family law system requires them to obtain independent, expert evidence about the value.
The Rules mandate that, at least at first, they must agree upon, or the court may order, the appointment of a single expert to value the asset.
But what happens if you don’t agree with the single expert report? CGW family lawyer Tiana Harris explains.
Hi, I’m Tiana and I’m a lawyer in the family law team here at Cooper Grace Ward.
If the parties cannot decide on the value of an asset such as real property during their property settlement, a single expert would usually be appointed to prepare a formal valuation report of that asset. Generally, the first step is that one party would write to the other party and propose a panel of say three valuers and the other party would choose one from that panel. A joint letter to that single expert would then be prepared and signed by both parties, detailing the asset to be valued as well as the instructions for that valuation. Once the valuation report is returned, it is usually the case that one party is really happy with the valuation report and the other, not so much.
So, what happens when you’re not happy with the valuation report? Well, there are several options as set out in the Family Law Rules. First, the parties may enter into a written agreement to confer with the expert witness at a conference for the purpose of clarifying their report. Another option is to write to the expert with a list of questions that you have about their report. The questions can only be put once and cannot be vexatious or oppressive, and cannot take the expert a lot of work to answer. Always make sure that you copy in when you’re writing to the expert, the other party into the email or correspondence. The last option, if the two previous options are to no avail, is to engage your own expert, which we call a ‘shadow expert’, but this can only be done with the permission of the court. This is because the court wants to limit the issues in dispute. Introducing a new report by a shadow expert introduces conflicting evidence as you have this extra report, and you will also need to cross-examine that expert. There is also quite a high threshold to be able to get leave from the court to engage a shadow expert.
In summary, it is really important that the expert that is jointly engaged by the parties is reputable and specialises in their field. The joint letter of instruction must be clear, precise and reflect the requirements as set out in the family law rules. If you require any further assistance with single expert reports or shadow experts, please do not hesitate to contact me or one of the other family lawyers here at Cooper Grace Ward.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.
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