Massen & Massen [2025] FedCFamC1F 631 (12 September 2025)

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Massen & Massen has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 11 November 2024, Judge Beckhouse made a number of directions to prepare this matter for hearing. One of the orders provided for the appointment of a single expert valuer if the parties were unable to agree on the value of the four pieces of real property held by the parties.
2. On 29 April 2025, Mr B was appointed the as the valuer. After his initial report specific questions were put to him which resulted in an increased value being placed on two of the properties. Thus, the one in D Street was valued at $8,750,000 and one in E Street at $9,750,000.
3. The husband was not satisfied with these figures and has obtained new valuation from Mr C who valued the D Street property at $11,000,000 and the E Street property at $11,000,000.
4. By his Application in a Proceeding filed on 15 July 2025 he seeks leave to rely on the report of Mr C as an adversarial expert.
5. The default position under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") is that expert evidence is given by a single witness and to permit adversarial experts only where that is 'necessary in the interests of justice': r 7.02(e).
6. To that end, r 7.08 provides that:

(1) If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court's permission.

(2) The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied 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.

1. The husband therefore relies on r 7.08(2)(b) and (c). There is no suggestion that there is a substantial body of opinion to the contrary to that relied on by Mr B.
2. Both experts applied the same methodology to the valuations - a direct comparison approach.
3. The difference to the matrimonial pool depending on which valuation is accepted, is 5 to 6 percent, which is not greatly significant. Given that valuation is not an exact science, a difference of such small magnitude is approaching a reasonable difference of opinion or within the margin of error. The difference in the value of the E Street property between the two valuers is 12.5 percent, which is more significant.
4. As to the D Street property, Mr B said:

Our research in the market found there is a lack of directly comparable sales evidence and therefore the sales provided in this report are the most relevant available to us.

(Valuation Report on Property Situated at [D Street Suburb F NSW dated 13 May 2025)

1. On the other hand, Mr C identified a number of sales which he considered were directly relevant sales, none of which was referred to by Mr B.
2. There is therefore a difference of opinion as to the comparability of the sales.
3. Further, in his report, Mr B adjusted the sales data to take account of current market conditions. Mr C did not agree with those adjustments.
4. As to E Street, there was a dispute as to the comparability of the sales relied upon by Mr B as some had a tennis court. He added that he was not aware of any recent sale of a property in the area with a tennis court for less than $10,000,000.
5. I do not consider that a dispute as to whether particular sales are comparable constitutes knowledge of matters known to one expert but not another. It is a difference of opinion as to what constitutes a relevant sale which ought to be taken into account. That is very much a value judgment based on the expertise of the valuer.
6. These are also matter that can be put to Mr B in cross-examination.
7. The wife disputes that some of the sales relied on by Mr C are comparable and does not agree that some were completed sales. That would involve Mr C being cross-examined.
8. This would be a classic example of 'the battle of the experts' over matters on which valuers could reasonably differ which is what is sought to be avoided by the single expert rules (Tsoutsouvas & Tsoutsouvas and Ors [2012] FamCA 521 at [26]). The properties being valued are, after all, homes in a suburb of Sydney.
9. As to r 7.08(2), the word 'special' is not to be ignored: Bass & Bass [2008] FamCAFC 67; (2008) FLC 93-366 at [36].
10. I do not consider the difference in the values obtained by the two experts to constitute a special reason where the property pool is of the order of $50 million to $60 million.
11. The question, ultimately, is whether it is in the interests of justice to permit the further evidence.
12. Taking into account the above matters, I am not persuaded that the interests of justice require the evidence of Mr C.
13. For these reasons the respondent's application is dismissed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.