If there is no agreement about the value of a particular asset during a property settlement, the asset will need to be valued.
In family law matters in the Federal Circuit and Family Court (FCFCA), the rules require that evidence about a particular issue, such as the value of a property, be given by a single expert witness. Some of the reasons for this requirement include minimising cost, and maximising efficiency. If there are two separate experts, giving different valuations of one asset, it is difficult for the court to determine which value should be adopted. Additionally, the parties to the court proceeding can split the cost of a single expert, rather than each paying the whole cost of their own expert.
The single expert can be appointed by agreement between the separating couple, or by order of the court if there is no agreement. The expert must be willing to accept the appointment. The single expert is instructed by both sides to the dispute. This is usually done by one solicitor preparing a letter of instruction, and the other solicitor confirming they are satisfied with the letter of instruction. Sometimes, there will be several drafts of a letter of instruction before there is final agreement about what is sent to the expert.
The costs of the expert report are usually shared equally by the parties. However, in circumstances where one party may not have immediate access to cash, a court can order that one party pay for the whole report at the time that it is prepared, with an ability to be reimbursed when the property settlement occurs.
Usually, the expert will confirm with both solicitors that they have received the letter of instruction, and understand their obligations as a single expert witness. When the expert has carried out the work, they must provide a written report, and the report must be provided to both sides of the dispute at the same time.
If either party has questions after an expert report is released, they can ask the expert for clarification. A copy of the questions is usually forwarded to all parties and the expert, and the expert replies to all parties, so that everyone has the same information.
An expert report can be used to define a value for an asset, so that the parties know clearly what each asset is worth, and this information can be used to negotiate or settle the dispute by agreement. A valuation can also be used at trial, so that the judge knows the exact value of an asset, and can use that information when making a final decision about property settlement. At a trial, a single expert may be asked to attend and give evidence, and be cross-examined by the parties’ legal representatives.
For advice or representation in any legal matter, please contact Armstrong Legal.