Valuations and the Asset Pool

One of the first questions when completing a property settlement is “What is the asset pool?” By quantifying the assets, liabilities, superannuation, and financial resources of the parties, parties can then start to think about how the asset pool will be divided between them, having regard to their respective contributions and future needs.

It is important that the asset pool is identified before any settlement negotiations take place, the parties attend a mediation/conciliation conference, or the matter proceeds to a hearing.

The value of some assets, such as bank accounts, shares, and accumulation superannuation interests, are usually easily identified by obtaining the most recent account statement. The value of other assets however can be more difficult to identify, examples of such assets include:

• Motor vehicles;

• Collectable items, including antiques and vehicles;

• Real estate;

• Businesses; and

• Defined benefit superannuation interests.

If parties can agree on the value of the above types of assets, the agreed value can be adopted for the purposes of the balance sheet and the property settlement. For example, parties may agree upon the value of a car by obtaining a RedBook valuation, or the value of real estate by obtaining a market appraisal from a real estate agent.

If there is no agreement as to the value of a certain asset, the parties will need to engage an independent expert to value the items. When obtaining a valuation, it is important to:

• Agree upon who will carry out the valuation – the valuer should be appropriately qualified to carry out the valuation;

• Agree upon who will pay for the valuation – it is common for valuation fees to be shared equally between parties;

• Jointly instruct the valuer in writing – it is inappropriate for parties to individually speak with/instruct the valuer; and

• Request that the valuer provide their valuation in writing.

If no agreement can be reached about the appointment of a valuer, and the matter is in Court, the Court has the power to appoint a valuer (known as a Single Expert).

If the matter is in Court, once a joint valuation has been obtained, the parties are bound by the value unless otherwise agreed or ordered by the Court. If one party does not accept the valuation, they can ask questions of the valuer in accordance with Division 7.1.6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; obtain a second valuation and/or seek permission from the Court to rely upon a second valuation (known as an Adversarial Expert Report); this is not a straightforward process, and specialist family law advice should be sought prior to making an application to rely upon an Adversarial Expert Report.

If you have questions about valuations and your property settlement you should obtain specialist family law advice. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Peta Sutton, Senior Associate

When Do You Call in the Experts? Expert Evidence in Family Law

Experts are commonly engaged in family law proceedings to address a gap in the evidence before the Court or to resolve an issue in dispute. Expert evidence is obtained by way of a written report in order to guide the parties to a resolution or to provide guidance to the Court as to the most appropriate outcome, in either parenting or property proceedings.

Expert evidence is frequently obtained in the following circumstances:

1. For an accountant to give an opinion as to the value of a business in property proceedings;

2. For a valuer to give an opinion as to the value of a house or other asset in property proceedings;

3. For a child psychologist to give an opinion about the most appropriate care arrangements for a child or children in parenting proceedings;

4.  For a psychiatrist to conduct an assessment and offer an opinion including a diagnosis as to the mental health and recommended treatment of one or more parties involved in parenting proceedings.

It is not a requirement in each case that expert evidence be obtained, however, it is uncommon for there to be no expert evidence. In property proceedings, if parties are able to agree on the value of assets, then there may be no need for the appointment of an expert.

A Single Expert, being an expert in the Court proceedings, can be appointed either by the Court or by parties to proceedings. One of the purposes of the Federal Circuit and Family Court of Australia Rules is to encourage parties to only obtain expert evidence in relation to a relevant and significant issue in dispute, to limit the costs of parties, and also to limit the risk to parties regularly obtaining expert evidence, or to “expert shop” if they do not accept the expert evidence they have obtained.

The Court Rules aim to reduce the prevalence of a party seeking to put before the Court expert evidence which interests their own case. It is generally preferable to appoint a joint expert, who receives joint instructions and therefore may be more inclined to offer an opinion that is balanced, considered, and will withstand scrutiny, as opposed to an expert who may become biased as a result of only hearing the instructions of one party.

A party may seek to leave to appoint its own adversarial expert, rather than appointing a joint expert. An adversarial expert can only be appointed however in certain circumstances, such as where it is argued the joint expert had insufficient qualifications or expertise in the subject matter about which they are providing an opinion.

The Court is not bound by the opinion or recommendations given by an Expert in Court proceedings. The Court can use its discretion in order to determine whether to rely on the opinion of an Expert, either in whole or in part.

To obtain specialist family law advice in relation to your matter, contact Robinson + McGuinness to arrange an initial appointment. Contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

Author: Margot McCabe