What if I don’t agree with the single expert report?13 May 2020 Topics: Family law
When a single expert is appointed
The first step towards resolving a property settlement is identifying and valuing the assets.
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 – for example, of a real property or business.
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.
This process replaces the old system where each party traditionally instructed their own valuer; often resulting in a protracted, futile and expensive competition between the valuers.
Now instead, the parties write a joint letter to the expert setting out what property is to be valued and providing any history or materials necessary to inform the valuer.
The expert will then prepare and release a valuation report.
When the single expert releases their valuation report, it is common that one party is happy with the valuation and the other is not. Naturally, whichever party wants to retain the asset being valued will prefer that it be valued as low as possible, and vice versa.
So what can be done if a party does not agree with the single expert’s valuation?
Convene a conference with the single expert
Within 21 days of receipt of the expert’s report, the parties can agree to convene a conference with the expert to clarify the report.
If the parties are unable to agree about conferring with the expert, the court may, on an application by a party, order that a conference be held in accordance with any conditions the court determines.
The conference, whether agreed to by the parties or ordered by the court, could involve the attendance of a further expert or provision of a supplementary report.
Unless the court orders otherwise, if both parties attend the conference, they jointly pay the expert’s costs to convene the conference but, if only one party attends, then that party will pay the single expert’s costs.
Ask the single expert written questions
A party may ask the single expert questions to clarify their report within 7 days of a conference being convened with the expert or within 21 days of receipt of the expert’s report.
The questions must be in writing, be only for the purpose of clarifying the report, and not be vexatious or oppressive, or require the expert to undertake an unreasonable amount of work to answer.
If a party asks the valuer questions, those questions must be given to each other party.
Once questions are put to the expert, they have 21 days to respond.
The party asking the questions must also pay the expert’s costs to answer those questions, unless the court otherwise directs.
Engage a shadow expert
Once the approaches outlined above have been explored (often parties do both), a party can retain their own expert (known as a shadow expert) to:
- assist in preparing questions to ask the single expert to clarify their report or to use by way of cross-examination at a hearing in the family law courts
- attend a conference with the single expert to clarify their report
- prepare a further valuation report.
If, however, a party wishes to rely upon a further valuation report prepared by their shadow expert on the same issue already dealt with by the single expert, that party will need the leave of the court to rely upon the shadow expert’s report.
Where the purpose of engaging a single expert is to limit the issues in dispute and avoid the costs arising from the appointment of more than one expert, the court is very mindful that, where permission to introduce a shadow expert’s evidence is given, both the costs and the issues between the parties generally increase.
Therefore, in granting leave the court must be satisfied that:
- there is a substantial body of opinion contrary to any opinion given by the single expert and the contrary opinion is or may be necessary for determining the issue
- another expert knows of matters, not known to the single expert, that may be necessary for determining the issue
- there is another special reason for adducing evidence from another expert.
Cross-examine the single expert
Cross examination of the single expert is where a party or their lawyer asks the single expert questions at a court hearing, usually in order to expose deficiencies or inconsistencies in their valuation report.
A shadow expert can be essential in assisting preparing questions for cross-examination.
If a party wishes to cross-examine the single expert, they must arrange for the expert to attend court on the hearing date and, unless the court otherwise directs, pay their reasonable expenses of attendance.
Things to think about when engaging a single expert
Given that it can be difficult to challenge a single expert’s report (with a conference and written questions put to the expert only to be for the purposes of clarifying their report) and adduce evidence of a shadow expert, it is important to ensure when engaging a single expert that:
- the expert is reputable and specialises in the area
- the instructions given to the expert are clear and the expert is given all relevant documents and information
- the expert is given a reasonable time frame within which to consider the issues and complete their report
- where possible and applicable, the expert is given permission to talk to each of the parties and their accountants about the issues before completing their report
- the expert be requested to release a draft of their report so the parties can identify any issues with the valuation methodology before the report is finalised.
If you require any assistance in engaging an expert or dealing with an unfavourable single expert report in your family law matter, please do not hesitate to contact one of our experienced family lawyers.