Family Law Expert Evidence Admissibility

Introduction

It may seem time consuming and expensive to have formal valuations conducted to get family law expert evidence. It can mean the world of difference though to your outcome for property settlement.  

Recent Case Law

The recent Federal Circuit Court decision in Isaacson [2019] FCCA 522 emphasises the importance of making sure that your “expert” is an expert in fact before relying on them to give family law expert evidence at trial. 

In this case, the parties were unable to agree on the value of the Husband’s book collection which he had built up throughout the parties’ marriage. The Husband was wanting to keep it in the property settlement. 

Court Analysis

At trial, the Husband put before the Court an affidavit of a gentleman who stated in his affidavit that he was the owner of a store selling used books and collectibles. He stated that he had been selling and grading used books for almost 23 years. 

The used bookstore owner in this case may have been quite accurate in his estimation of the value of the Husband’s book collection. However, there was not enough evidence of his qualifications to value the collection given to the Court. 

Family law expert evidence must be given by a person who is qualified to give an opinion based upon their training, study or experience, with any opinion based wholly or substantially upon their expert knowledge. The issue in Isaacson’s case was that there was no evidence produced about whether the book seller had any training or qualifications which would make him a specialist in valuing used books. 

Experience is certainly a consideration of the Court when establishing whether a person is qualified to give family law expert evidence. However, our used book seller in Isaacson’s case at no stage gave the court any evidence to show that the value he gave for the Husband’s book collection was based upon his experience or any training and that the dollar figure he quoted wasn’t plucked from thin air as you or I may do to value a book collection. 

Your family law expert evidence needs to be produced by an expert – not somebody who merely works in the field of say, bookselling, but instead someone who has the training, study and experience to apply their expert knowledge and give an informed expert opinion. More than that though, it pays to make sure that if your family law expert is really an expert, that they tell the Court that in their affidavit material. 

When the Court in Isaacson’s case turned to the Wife for her to produce her book valuation expert for cross examination, the Court was advised that the Wife’s family law expert was not present in Australia at the time of the trial. 

Orders

As there were serious problems with the quality and admissibility of both parties’ expert evidence, the Court decided that the most appropriate solution was to Order that the Husband’s book collection be sold and that the proceeds of sale be divided equally between the parties. The percentage division of the money from the sale of the books was not decided based on expert evidence but on the basis of contributions factors in this matter, namely the Wife’s financial contribution to buying the books.

The Court in Isaacson’s case took this view because it was the only way that the Court had of ensuring that the value given to the books was accurate since there was no family law expert evidence in fact provided – the sale price of the books would be their value.

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