Pub­li­ca­tions

The Role of Expert Evi­dence in Fam­i­ly Law

If you are sep­a­rat­ed and look­ing to obtain a final prop­er­ty set­tle­ment, the very first step you will be required to take is to iden­ti­fy the mat­ri­mo­ni­al asset pool. This involves iden­ti­fy­ing each of your respec­tive assets, lia­bil­i­ties, finan­cial resources and super­an­nu­a­tion inter­est in order to ascer­tain the net assets that are avail­able to be divid­ed between you and your for­mer spouse. But what hap­pens when you and your for­mer spouse are unable to agree on the val­ue of one of your assets? This stale-mate’ can not only lead to increased con­flict between you and your for­mer spouse but also impact your abil­i­ty to progress your mat­ter and secure an outcome. 

In order for you and your for­mer spouse, or for the Court, to deter­mine the most appro­pri­ate way to divide your assets and finalise your prop­er­ty set­tle­ment, it is first nec­es­sary to know, and agree upon the val­ue of each of your assets and liabilities. 

For some assets, this issue can be resolved rel­a­tive­ly eas­i­ly by exchang­ing finan­cial dis­clo­sure doc­u­ments such as bank state­ments and super­an­nu­a­tion state­ments. These doc­u­ments clear­ly spec­i­fy the val­ue of your inter­est and can lim­it the oppor­tu­ni­ty for dis­agree­ment. For assets with­out an eas­i­ly ascer­tain­able val­ue such as real estate or a busi­ness inter­est, it can be more dif­fi­cult to reach an agreed val­ue with your for­mer spouse. 

In cir­cum­stances where you and your for­mer spouse are unable to reach an agree­ment in rela­tion to the val­ue of an asset, you will be required to obtain expert evi­dence in the form of a report from a qual­i­fied expert in the rel­e­vant field. Experts which are com­mon­ly appoint­ed include real prop­er­ty val­uers, foren­sic accoun­tants and art and chat­tels val­uers. Where expert evi­dence is required you can either appoint an expert joint­ly with your spouse – a Sin­gle Joint Expert or engage an expert to val­ue an asset on your behalf alone – an Adver­sar­i­al or Shad­ow” Expert. 

Sin­gle Joint Expert

In cir­cum­stances where you wish to joint­ly appoint an expert, you and your spouse will need to agree on the appoint­ment of the par­tic­u­lar expert and pre­pare a joint let­ter to pro­vide your instruc­tions as to the scope of their val­u­a­tion report. Once engaged, the expert will make the appro­pri­ate search­es and enquiries in order to assess the asset and pre­pare a com­pre­hen­sive report set­ting out their opin­ion as to its val­ue. Sin­gle Joint Experts have a duty to pro­vide an inde­pen­dent and impar­tial opin­ion and accord­ing­ly, they can be help­ful in pro­vid­ing an objec­tive expert opin­ion for par­ties that are strug­gling to agree to the val­ue of an asset. 

Adver­sar­i­al or Shad­ow” Experts

If you are unsat­is­fied with the val­ue pro­posed by the Sin­gle Joint Expert, you will be pleased to know that you have the oppor­tu­ni­ty to ask the val­uer to clar­i­fy any ques­tions you have about their report and the val­u­a­tion method­ol­o­gy they have adopt­ed with­in 21 days fol­low­ing the receipt of the expert report. 

In cir­cum­stances where the valuer’s response does not resolve your con­cerns in rela­tion to the val­ue giv­en by the Sin­gle Joint Expert, you may seek to appoint an Adver­sar­i­al or Shad­ow” Expert. 

Adver­sar­i­al or Shad­ow” Experts are experts that are appoint­ed by one par­ty alone, and their role includes advis­ing their client and review­ing or cri­tiquing, the report of the Sin­gle Expert Witness. 

An Adver­sar­i­al Expert can be of great assis­tance in com­plex mat­ters how­ev­er; there are rules for adduc­ing the evi­dence of an Adver­sar­i­al Expert in cir­cum­stances where their val­u­a­tion, and the Sin­gle Joint Expert’s val­u­a­tion differ.

Rule 15.49 of the Fam­i­ly Law Rules 2004 pro­vides that the Court must be sat­is­fied that there is a sub­stan­tial body of opin­ion con­trary to the opin­ion of the Sin­gle Joint Expert, that the Adver­sar­i­al Expert has access to facts that the Sin­gle Joint Expert did not have access to, or that there is anoth­er spe­cial rea­son for a Shad­ow Expert’s evi­dence to be accepted. 

Expert evi­dence can be crit­i­cal in suc­cess­ful­ly nav­i­gat­ing your mat­ter and obtain­ing a favourable prop­er­ty set­tle­ment. The lawyers at Swaab have sig­nif­i­cant expe­ri­ence deal­ing with Expert evi­dence and have strong rela­tion­ships with high­ly regard­ed experts such as real estate val­uers, foren­sic accoun­tants and chat­tel and art­work valuers.