The Undesirability of Appeals in the Family Court
Recently, we have had a number of cases where parties have good prospects to appeal, but a decision has been
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20 September 2021
In Family Court matters, the parties will often engage a Single Expert Forensic Accountant to value a parties business interest as part of the overall identification and valuation of property interests.
Over the years, we have noticed an increasing willingness by forensic valuers to sometimes opine different valuation outcomes and ranges based on different hypotheticals. In some cases, this may be due to difficulties surrounding the valuation and methodology chosen, or in other cases, there simply being an expression of a range of possible outcomes, rather than an explicit value being chosen.
On the one hand, valuations that offer a range of values or different hypotheticals, can sometimes assist more in mediations or negotiations where parties have room to manoeuvre and try to reach a settlement that meets everyone’s desired outcomes. However, the danger in having expert evidence provide a range, is that it opens up the Judge’s discretion to choose any value withing that range. This was highlighted in a Full Court decision in the Family Court in Samper v Samper [2021] FamCAFC 140.
In this matter a Judge simply picked the mid-way point between the range of values that had been offered.
The Single Expert evidence had been allowed to provide a range and the expert was not questioned or cross-examined at all.
In this case, the Full Court emphasised the fact that it was simply a matter of discretion and whether or not that decision by the Judge was right or wrong, the fact remained that it was within a range of outcomes suggested by the independent Forensic Accountant and in a situation where both parties had agreed to the expert providing such a range. Certainly, if there had been competing or duelling experts who had both proffered a different valuation, then the automatic picking of a halfway point between those valuations could have been subject to a successful appeal. However, in circumstances where the parties allow such evidence to be admitted, it is very difficult to interfere with a Judges discretion in picking a valuation between that legitimate range.
If you need any assistance in relation to business valuations or anything else to do with your family law matter, please do not hesitate to contact Brett Hartley or our client services manager, Tyanne Su’A to discuss same.
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