There are several important factors to consider and steps to take when parties seek to establish a financial relationship after a dissolution. One of these is obtaining an appraisal of the parties’ property or Valuation of Property.
Courts dealing with family law matters have the discretion to make fair and impartial decisions. One of the questions that the Australian Federal Circuit and Family Courts should consider when asked to determine the division of marital property between parties is whether they should exercise discretion in this regard. This depends on whether the parties have material assets and whether the value of those assets is in dispute.
What if parties disagree?
If a court decides to reconcile property between the parties, the value of the property can often be agreed upon by the parties. May be agreed for negotiation purposes. If there is no agreement on the value of the property, you can get an appraisal report. In order to determine the value of a disputed item, the parties may agree to obtain a joint valuation.
Requirements for a valuation
It is important to understand that the valuations relied upon must be current at the time the parties are reaching the Asset Allocation Agreement. Any order to establish a financial relationship between the parties is based on the value of the assets at the time the order is placed. They are not based on numbers that may have been accurate at the time the parties parted ways.
If the matter reaches final hearing and no agreement is reached regarding the property or the value of the property, the value of the property must be proven to the court. The person making the valuation must be sufficiently qualified to value the property so that the valuation is acceptable as evidence in court.
A single expert
This raises the question of whether the parties should involve separate experts or evaluators, or a single evaluator, to prepare the joint evaluation. An expert witness who makes an appraisal for a court in a reliable manner as the sole proof of value is called an exclusive expert witness.
An individual expert preparing an expert opinion to be accepted as evidence by a family law court must prepare a report that meets the requirements of the family law system. According to Article 15(5) of the Family Law System, the court may, on application or ex officio, order an examination by an expert.
Is expert evidence needed?
In considering whether to obtain an expert report on the value of property, the court may consider the following principles:
Parties should seek professional advice only:
- If there is a serious dispute;
- Where the resolution or decision of a case requires an expert opinion;
- Where the expert’s opinion is practicable and not prejudicial to the interests of justice;
- If you need to avoid unnecessary costs incurred by appointing multiple experts;
- If you want an expert opinion for justice.
If the court determines that expert evidence is required, it must assess whether that evidence should be an individual expert assessment. In making this determination, the court considers whether the issue lies substantially within the established body of knowledge and whether the court should have divergent opinions. The Family Court usually appoints only one expert.
After the individual expert’s report has been distributed to the parties, the parties may clarify or question the expert’s findings. Both parties will be given 21 days for her to submit written questions or attend a meeting with the sole expert.
If a court asks a single expert to provide an opinion or testimony on an issue, a party may not submit an opinion or evidence from another expert on the same issue without the court’s consent. . But even after asking questions and attending meetings with one expert, stakeholders may still be unsatisfied with the evaluation. Important questions can remain, such as whether the individual appraiser used the correct valuation method.
Applying to tender other evidence
If a separate expert has been appointed and a party wishes to submit another witness opinion, an affidavit must be filed.
The affidavit must contain the following:
- Whether or not one party sought to agree with the other party on the appointment of a single witness, and if not, why;
- Name of the expert;
- Matters for which expert testimony is given;
- Why you need an expert opinion on this matter;
- The field in which the subject matter expert is an expert;
- Professional education, research, or experience that qualifies the witness as subject matter expert;
- Whether there is a previous connection between the witness and the parties.
Under Rule 15.49 of the Family Law Rules, a court may allow a party to present evidence on the same matter from another expert if the party:
- There are many opinions that contradict the opinion of a single expert, and dissenting opinions are needed to decide the case;
- Another expert knows facts unknown to the individual expert and may be needed to clarify the facts;
- There is another particular reason evidence is provided by another expert. It has to be something special, not just a “report purchase”. It’s not specific enough that different reports give different values.
In summary, property valuation is an important preparatory step for determining whether parties need to balance property rights after a relationship breaks down. If agreement cannot be reached between the parties as to the value of the property, the appointment of an appraiser and, if necessary, a single appraiser should be considered.
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