The case of Shamon & Shamon involved a part-heard (in progress) trial. The Husband sought (amongst other things) to adduce evidence about the value of the Wife’s beneficial interest in a property.
In dismissing the Husband’s application, the court provided a helpful summary of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Family Law Rules) which apply when seeking to rely upon expert witness evidence, that has not been provided by a single expert witness (jointly appointed by the parties).
The relevant considerations
The Husband alleged that the Wife had a beneficial interest in residential units in another country (anonymised to ‘UU’) and the Husband sought to rely upon evidence from Mr AO, a property valuer in UU, and a translation of his valuation report.
The court provided a helpful summary of the Family Law Rules as they relate to expert witness evidence as follows:
- The purpose of the rules is to ensure that parties obtain expert evidence only in relation to a significant issue in dispute and if practicable such evidence is to be given by a single expert witness (Rule 7.02 of the Family Law Rules).
- As the evidence sought by the Husband has not been adduced by a single expert he must apply for the court’s permission to tender a report or adduce evidence at a hearing from the expert witness (who is not a single expert) (Rule 7.10(a) of the Family Law Rules).
- In deciding whether to allow a party to submit the expert evidence, the court is to consider the matters set out at Rule 7.11(3) of the Family Law Rules, including:
- the impact of the appointment of an expert witness on the costs of the proceeding,
- the likelihood of the appointment expediting or delaying the proceeding,
- the complexity of the issues in the proceeding,
- whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only,
- whether the expert witness has specialised knowledge, based on the person’s training, study or experience:
- relevant to the issue on which evidence is to be given, and
- appropriate to the value, complexity and importance of the proceeding.
- The expert must have been instructed pursuant to Rule 7.13 of the Family Law Rules:
- A party must ensure the expert has been provided and read Divisions 7.1.4, 7.1.5 and 7.1.6 of the Rules and the party must obtain a written report from the expert.
- All instructions to the expert must be in writing and set out that the report may be used in an actual or anticipated proceeding, set out the issues about which the opinion is sought, set out a description of any matter to be investigated/experiment to be undertaken, and full and frank disclosure of information and documents that will help the expert witness perform their function.
- The expert’s report pursuant to Rule 7.22 of the Family Law Rules must state the reasons for the expert’s conclusions, including a statement about the methodology used and include various other information set out at sub-section (2) in support of the expert’s conclusions.
The court found that the Husband was unable to rely on the expert evidence because:
- It was filed very late (mid-way through a trial), and it did not comply with the Family Law Rules regarding expert witness evidence.
- The instructions in this matter to the expert witness were not in writing. There was some conjecture about whether there were ‘whatsapp’ instructions in writing, but they were not before the court. The court commented about the absence of written instructions 'This is significant since the transparency in the instructions provided assist a party to test the evidence'.
- There was no evidence that the expert complied with Rule 7.13(2)(a) to read and understand the relevant Divisions of the Family Law Rules.
- The court also made commentary about the expert evidence not being admissible where it does not set out the basis or conclusion for the opinion provided and where there was an issue between the parties about the Wife’s interest in the property 'does not oblige me to admit inadmissible evidence'.
Key takeaways
- It is common for financial and legal advisors to be asked to provide advice around expert reports obtained in family law matters. It is often that a party might seek to challenge valuations prepared by a single expert. This case highlights the need to properly consider how any proposed expert is briefed and how they are directed to prepare their reports.
- Financial and legal advisors should work together to ensure that any expert valuer is properly briefed so that their reports comply with the Family Law Rules. This will assist to mitigate the risks of the court dismissing the ability to rely upon the report prepared by the expert.
