Federal Circuit and Family Court of Australia (DIVISION 1)
Scafides & Petrakou (No 4) [2023] FedCFamC1F 78 
File number:	SYC 1814 of 2020	
		
Judgment of:	CAMPTON J	
		
Date of judgment:	20 February 2023	
		
Catchwords:	FAMILY LAW – PROPERTY – EXPERT EVIDENCE – Application to rely on further expert evidence as to the value of a real property, where a single expert witness has been appointed to opine on that matter  Where the Court is not satisfied that any of the matters identified in r 7.08(2) of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) apply – Where both witnesses adopt a comparable sales methodology in valuing the subject property – Where there is some difference in the weight each expert attaches to what they consider to be directly comparable sales – Where the experts have engaged in a conference pursuant to r 7.25 – Where the difference in value itself is not a special reason as identified by the rule to ground leave to adduce opinion evidence from an adversarial expert – Application dismissed.  	
		
Legislation:	Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 7.1, rr 7.02, 7.08, 7.25	
		
Cases cited:	Commonwealth v Milledge (1953) 90 CLR 157; [1953] HCA 6
Neales & Neales (2022) FLC 94-079; [2022] FedCFamC1A 41
Scafides & Petrakou [2023] FedCFamC1F 62	
		
Division:	Division 1 First Instance	
		
Number of paragraphs:	20	
		
Date of hearing:	20 February 2023 	
		
Place:	Sydney	
		
Counsel for the Applicant:	Mr Dura	
		
Solicitor for the Applicant:	Sexton Family Law	
		
Counsel for the Respondent:	Ms Gillies SC	
		
Solicitor for the Respondent:	O’Sullivan Legal	
		
Counsel for the Independent Children's Lawyer:	Mr Ladopoulos	
		
Solicitor for the Independent Children's Lawyer:	Sarah Bevan Family Lawyers	

ORDERS
	SYC 1814 of 2020	
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)	
BETWEEN:	MR SCAFIDES
Applicant
	
AND:	MS PETRAKOU
Respondent
	
	INDEPENDENT CHILDREN'S LAWYER

order made by:	CAMPTON J	
DATE OF ORDER:	20 February 2023	

THE COURT ORDERS THAT:

1.	The husband’s Application in a Proceeding filed 20 January 2023 is dismissed. 
2.	Each of the husband and the wife’s costs of and incidental to the husband’s Application in a Proceeding filed 20 January 2023 are reserved. 

Note:	The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Scafides & Petrakou has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
1	The husband by an Application in a Proceeding filed 20 January 2023 seeks leave to adduce and rely upon evidence of a real property valuer, Mr F, as to the value of real property held by the wife at B Street, Suburb C, (“the Suburb C property”). That property has been the subject of opinion evidence given by the single expert witness, Mr E, in his report dated 19 October 2022. Mr E’s report has become Exhibit 9 in these proceedings. 
2	In support of his relief sought the husband relies on two affidavits of Mr F, the first filed on 20 January 2023 and the second filed on 17 February 2023. The first affidavit of Mr F attaches what might be described as a critique of Mr E’s opinion. That critique is dated 19 January 2023. The second affidavit attaches to it a valuation undertaken by Mr F of the Suburb C property as at 31 January 2023 and issued on 2 February 2023. The wife concedes that she received Mr F’s report issued on 2 February 2023 on or about that date.
3	Mr E, as the single expert witness, opined that the value of the Suburb C property at $3.15 million. By way of his critique dated 19 January 2023, Mr F opined that the Suburb C property had a value in the range of $3.3–3.5 million in his critique. His report attached to the second affidavit opines a value of $3.5 million. 
4	On 3 February 2023, the wife filed a Response to the husband’s Application in a Proceeding seeking that it be dismissed and that the husband pay her costs of an incidental the application. She relied on her affidavit filed on 3 February 2023 in support of her Response. 
5	The husband’s Application in a Proceeding and the wife’s Response thereto came before me on 15 February 2023, some five days prior to the first day of the trial. I made orders requiring the parties to facilitate a conference with Mr E pursuant to r 7.25 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and otherwise adjourned the application in a proceeding to be determined at trial. For reasons best known to the husband, he did not appraise the Court as to the fact or terms of Mr F’s valuation report issued on 2 February 2023 for the purposes of the hearing on 15 February 2023. This judgment assumes familiarity with the reasons for judgment delivered on that date, being Scafides & Petrakou [2023] FedCFamC1F 62 (“the earlier reasons”). 
6	Subsequent to the orders made on 15 February 2023 and pursuant to r 7.25, Mr E and Mr F conferred on or about 17 February 2023. A letter sent jointly by Mr E and Mr F to the parties recording the contents of that conference was tendered into evidence in support of the husband’s Application in a Proceeding and is marked as Exhibit 10. It records as follows:
Dear Colleagues 
I confirm I have spoken with [Mr F] this morning regarding my updated valuation report dated 19th October 2022 and [Mr F’s] Valuation report dated 31st January 2023.
In the limited time frame available to review the report, we both concur we have no significant disagreements over the description and details of the property. Taking into account the subject property’s attributes and uniqueness, coupled with the very limited, recent, directly comparable sales evidence, we do acknowledge our assessment of value is within approximately 10% of each other which is considered within a reasonable industry standard between Valuers opinion on such properties.
We each confirm our assessment of value remains unchanged as at the date of Valuation of each report.
(As per the original)
7	As identified in the earlier reasons, r 7.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) specifies the purpose of Pt 7.1 of the Rules. Those include:
(c)  	to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness; 
…
(e)  	to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if that is necessary in the interests of justice. 
8	Rule 7.08 provides what is often described as the ‘prohibition rule’, in that it prevents a party adducing evidence from an expert on the same issue for which a single expert witness has already been appointed without the Court’s permission. Rule 7.08(2) provides that the Court may allow a party to tender a report or adduce evidence from another expert witness on the same issue as the single expert witness if it is satisfied as to any of the matters set out in r 7.08(2) have application. They are that:
(a)  	there is a substantial body of opinion contrary to any opinion given by the single expert witness and the contrary opinion is or may be necessary for determining the issue; or 
(b)  	another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or 
(c)  	there is another special reason for adducing evidence from another expert witness. 
9	It does not seem to be the case that the opinion of Mr F addresses or engages with either of the matters identified in subrules (a) and (b). That is, Mr F does not identify a substantial body of opinion contrary to that given by Mr E. He does not raise matters not known to Mr E that may be necessary for determining the issue. As recorded in the earlier reasons and identified in Mr F’s affidavit of 17 February 2023, each expert opines that a comparable sales methodology is appropriate to ground any opinion as to the value of the Suburb C property.
10	There is some difference between the weight that each expert attaches to what they consider to be direct comparisons to the Suburb C property. Specifically, both identify a prior sale, being of a unit in the same building as the Suburb C Property, as being an important comparable sale. For his part, Mr F records that this unit is directly above the Suburb C property. Mr F’s analysis of that property is it has some inferior areas with a comparable car space and additional storeroom. It is his opinion the subject Suburb C property, albeit having fewer bedrooms accommodation, has some direct comparisons to the other unit. Importantly, this sale that both experts seem to place significant weight upon, is somewhat antique. It occurred in 2021 for over $3 million. Both experts recognise that the market has eased since that time.
11	The difference between each of the experts how the other unit is comparable to the subject Suburb C property appears to be a crux of the matter. Mr F opined that an adjustment up to 10 per cent from the value of the 2021 sale of the other unit, achieved in a more bullish market, justifies in his opinion what ought to be a value of the Suburb C property at $3.5 million “on balance”. Mr F further opines as to two other comparable sales in J Street, Suburb C, both of which took place in mid-2022 that he says supports his opinion. It is apparent that Mr E has now had the opportunity give limited consideration to these sales (they are not identified in his report) because it seems uncontroversial that he had the benefit of Mr F’s report dated 2 February 2023 (valuing as at 31 January 2023) for the purposes of the conference between them as identified in Exhibit 10. Hence Mr E is now appraised as to the fact and terms of each comparable sale relied upon by Mr F to ground the latter’s opinion that may not have been considered by him as the single expert. He has not thus far not subsequently altered his opinion from a value of $3.15 million.
12	It is submitted on behalf of the husband that the difference in the valuation of the subject Suburb C property between that opined by Mr E at $3.15 million and that opined by Mr F of $3.5 million – that is, a differentiation of $350,000 – is in the range of about 4.3 per cent of the value of the non-superannuation pool of the property of the parties. He submitted that by reference to r 7.08(2), such a difference in value grounds a “special reason” for adducing the evidence from Mr F and hence, the threshold identified by r 7.08(2)(c) is achieved. 
13	He submitted that each of the experts could give evidence by way of cross-examination and at least implicitly that oral evidence from each expert would assist the Court in determining a preference as to one opinion over the other.
14	The husband submitted that there was a risk that, in the event there was a testing of Mr E’s evidence alone as the single expert, and the Court was then unable to accept it, there would be no value ascribed to the Suburb C property for the purposes of the s 79 dispute, hence the evidence of Mr F ought to be available. Safe to say, I do not accept that contention. It is not a simply a matter for the Court to accept Mr E’s contested opinion, nor for Mr E to determine the value of a property as a finding of fact in a determination pursuant to s 79 of the Family Law Act 1975 (Cth). It is for the Court to determine, being free to form its own view as to the value of the property, having regard to all of the evidence, by the proper application of established principles of valuation (see Commonwealth v Milledge (1953) 90 CLR 157). That said, in this case the parties agree that a comparable sales methodology is the established principle to apply in the determination by way of the finding of fact as to the value of the Suburb C property.
15	The husband further submitted that the wife would not be prejudiced by the husband adducing some additional evidence on this subject matter. He contends, at least implicitly, that the wife could have the capacity to treat Mr E as her witness. To my mind, in the circumstances of the current trial commencing today, that may not be as simple as it sounds. The capacity and willingness of Mr E to convert during a trial to a witness in the wife’s case is unknown.
16	The wife submitted, with some force, consistent with what the Full Court said in Neales & Neales (2022) FLC 94-079, that a significant difference in the value of a subject real property does not, of itself, warrant leave being granted to adduce evidence from another expert pursuant to the Rules on the same subject matter. The Full Court in that decision identified that, in circumstances where a difference in methodology and/or a difference in information is available, that circumstance, in combination with a difference in value, may be another special reason for leave to adduce evidence from an expert other than a single expert. 
17	Importantly to my mind, by way of Exhibit 9, Mr E and Mr F confirm that they have no significant disagreements over the description and details of the property. They both acknowledge that the Suburb C property’s attributes are unique and that there are very limited recent directly comparable sales underscoring each of their respective opinions. As recorded at [6] above, each of the experts appropriately confirm that their respective opinions are approximately 10 per cent apart from each other, such margin they consider to be “within a reasonable industry standard between [experts’] opinion on such properties”.
18	Having regard to the evidence, there appears no space for the husband to fall within the categories of discretions outlined by way of r 7.08(2) of the Rules. Each of the opinions of the respective experts, as observed by them in Exhibit 10, are “not wrong”. They are within a reasonable subjective range as opined by expert. 
19	The husband will have the opportunity by way of cross-examination to attempt to test, and to obtain a shift, in Mr E’s opinion grounded from the matters identified in Mr F’s report. In the course of cross-examination the husband can put to Mr E each of the additional J Street sales identified by Mr F and can test Mr E’s foundations for his opinion grounded from his other comparable sales and the weight that he gives them. 
20	In all of the circumstances and for the reasons identified, in the interests of justice by way of an application of the Rules, the husband’s Application in a Proceeding will be dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton.	

Associate: 
Dated:	22 February 2023