Section 79(1)(a) of the Family Law Act provides for the court to make orders “with respect to the property of the parties to the marriage or either of them – altering the interests of the parties to the marriage in the property”.
In most family law matters, the value of the whole of “the property of the parties to the marriage or either of them” and the value of individual assets and liabilities to be retained by each party or shared in some way will be important considerations.
Usually, issues relating to values will arise early, in order that the parties might be in a position to obtain proper advice and to make informed decisions (see Steps in the settlement process).
Where the value of an asset or liability is not agreed between the parties to a family law matter and where respective views make a significant difference to calculations of overall percentage outcomes, this can make settlement discussion or negotiation more difficult. For example, if the value of combined net assets of the parties is around $1,000,000, party A thinks business interests are worth $300,000, party B thinks those interests are worth $500,000, and it is agreed that A will keep the business, the two different values make a big difference to A’s overall percentage outcome and questions about whether other assets are available for A to take.
Division 15.5.2 of the Family Law Rules provides in relation to single-experts.
Where a difference of views about value means that negotiation becomes more difficult, the parties can agree to appoint a single-expert. In the absence of such agreement, the court may appoint a single-expert.
The system of single-experts was introduced to reduce common perceptions about partisanship relating to experts hired and instructed by individual parties and the notion that such experts might suffer pressure to act as advocate for those who instruct them or suffer conflict of interests. Accordingly, single experts are appointed by both parties or by the court and (generally) are paid by both parties.
While the rules provide for appointment of other experts to provide evidence in addition to the evidence of a single-expert, such appointments require the court’s specific permission and, because the additional expert (shadow-expert) is usually instructed and paid for by one party, the perception noted above may apply.