When you are working out a property settlement after separation or divorce, it’s not uncommon to disagree with your ex about the value of particular assets in the property pool. If you can’t agree on an asset’s value, it’s necessary to obtain expert evidence, in the form of a report from a qualified expert in the relevant field. The courts then rely on the expert evidence to assist them in making decisions regarding orders.
When a private professional prepares a report for the court on behalf of both parties, that professional is referred to as a “Single Joint Expert” witness. Once the single joint expert provides you with their report, you have 21 days in which you can question them to clarify anything regarding their report, such as the methodology used to determine the value. If you are not happy with their response, you may be able to engage an “Adversarial” or “Shadow Expert”. Adversarial experts can advise on and critique the single expert’s report and prepare their own report.
However, there are strict rules around adducing evidence from adversarial experts. An application must be made to the court which explains why a party feels there is a need for a separate expert, and the court has discretion as to whether to allow. That’s because the courts encourage the use of joint witnesses wherever possible to avoid potential “report shopping” by parties, where an expert is sought who might produce a more favourable valuation.
(If you both disagree with the report or valuation, you might however be able to jointly request another expert to give evidence.)
When might a court allow an adversarial expert’s evidence?
Under the Family Law Rules 2004, there are strict rules for permitting the evidence of an adversarial expert. The court has to be satisfied that there is a substantial body of opinion that is different to the opinion of the single expert—so not just that there is a difference of opinion between two experts, which is very common in many fields. Or, the court must be satisfied that the adversarial expert has access to facts that the single expert did not have access to. Or, there is some other “special reason” why the adversarial expert’s evidence should be accepted.
Case study: Wife says neigh to adversarial expert but court approves
Let’s take a look at a recent case (“Bergman & Bergman”) heard in the FCFCOA which centred on a dispute over the valuation of 21 horses which formed part of a non-super property pool of $1.4m. The husband and wife had agreed that each would keep a certain number of the horses. The husband would keep nine horses of a particular breed, and the wife would keep the 12 remaining ones. (In Australia, animals are treated as “chattels” and are valued as assets in the property pool.)
However, the husband and wife were in dispute over the value of each horse and therefore the impact on the final property settlement. Specifically, the husband disagreed with “or was troubled by” aspects of the single expert’s methodology and sought to introduce evidence from an adversarial expert.
Dispute of value of great dimension
The single expert had valued the wife’s horses at $36,950 and the husband’s horses at $7,450. The adversarial expert, however, valued the wife’s horses at $410,000 and the husband’s horses at $44,000. As you can see, the effect on the outcome of the property settlement would be significant, depending on which expert the court relied on.
But just because experts disagree on value, even by so much, is not by itself a reason to allow an adversarial expert’s opinion.
“Substantial body of opinion” and “information known only to one expert”
The husband argued that to truly value the horses, it would be necessary to take into account comparable sales as well as consideration of the horses’ lineages, both of which only the adversarial expert did.
Not only did the single expert’s report and methodology “not reference or rely on comparative sales at all”, but the husband’s expert report provided “significantly more information about each individual horse, including the bloodlines of the sires, the dams and the sires of the dams.”
The husband’s expert also made reference to the World Breeding Federation of Sport Horses (WBSFH), and placed considerable weight on the WBSFH ranking of the sires, which the judge found may be relevant in valuing the horses.
The judge said the information about bloodlines of dams and sires constituted a significant, substantial body of opinion that was different to the single expert’s opinion. Further, that information as well as the WBFSH information was information that apparently only the husband’s expert had access to.
The judge noted that in such matters, the judge’s duty is not to decide which expert is correct. It is the judge’s duty to decide the appropriate value. To do this the judge can take either expert’s opinion (if both are allowed in evidence), or make some other conclusion, as long as the parties are given procedural fairness and there’s a proper evidentiary basis.
Breaking the Rules on procedural fairness
Complicating things in this matter was that the husband’s adversarial expert provided his report to the wife at a very late stage. The wife argued this prejudiced her as she lacked the ability to inquire about an appropriate adversarial/shadow expert herself, or to file other evidence to counter matters asserted by the husband’s expert.
Further, the husband had not complied with Rules regarding written notice being provided to the single expert to be available for cross-examination; and in the end, the single expert was overseas and unable to be cross-examined.
However, the husband’s lawyer successfully argued that even cross-examination of the single witness couldn’t have cured the problem anyway, that the single expert report did not contain the information that the husband’s expert report did. It would leave a hole in the evidence and in fact, the lawyer argued, this actually represented another “special reason” for allowing the husband’s expert evidence to be relied on.
In all the circumstances, and given that the judge found the adversarial witness essentially provided better information to assist the court eventually determining the horses’ value, the husband was permitted to introduce his expert’s evidence in the matter.
You may also like to read our related blogs: Tips for choosing an expert witness and Testing the conclusions of an expert.
At Alliance Family Law we have engaged experts in a wide variety of family law cases. We are experienced at selecting and instructing the best independent expert for a given purpose and—crucially–that will be accepted by the court. If you would like any advice in relation to expert witnesses, or any other family law advice, please call Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
