GBT v BJT - [2004] FamCA 1160

[2004] FamCA 1160

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT ADELAIDE No AD 1694 of 2001

IN THE MATTER OF: G B T
(Husband)

B J T

(Wife)

CORAM: THE HONOURABLE JUSTICE STRICKLAND

DATE/S OF HEARING: 28^th June 2004 – 1^st July 2004, 23^rd July 2004,

13^th September 2004, 13^th December 2004,
15^th December 2004

DATE OF REASONS: 16^th December 2004

JUDGMENT

APPEARANCES: Mr Jordan appeared as counsel (instructed by David Burrell & Co) on behalf of the husband

Mr Richards appeared as counsel (instructed by Howe Martin & Associates) on behalf of the wife

CATCHWORDS

PROPERTY SETTLEMENT – issue as to value of the husband’s interest in the accounting practice, vineyard and wine industry ventures; contributions; Section 75(2) factors and how the wife should receive her entitlement – the value to the owner is the objective of the exercise and not a valuation methodology in itself – the value to the husband of his interest in the practice is the value that has been agreed upon by the partners in the event that a partner retires – husband has minority interest in the vineyard, issue as to whether a discount should apply – 15% discount applied – whether to take account of capital gains tax – wife to reimburse the husband in regard to certain capital gains tax – contributions of the husband far outweigh the contributions of the wife – contributions assessed at 87.5% to the husband, 12.5% to the wife – significant disparity between the parties’ income and earning capacities, and their property – adjustment of 5% to the wife to account for 75(2) factors – husband to pay the wife the sum of $477,281.

Ramsay and Ramsay (1997) FLC 92-742
AJW v JMW (2002) FLC 93-103
Turnbull and Turnbull (1991) FLC 92-258
Harrison and Harrison (1996) FLC 92-982
Ramsay and Ramsay (1999) FLC 92-742
Chorn and Hopkins [2004] FamCA 633
Townsend and Townsend (1995) FLC 92-569
Marker and Marker (1998) FamCA 42
Cerini and Cerini (1998) FamCA 143
Rosati and Rosati (1998) FLC 92-804
SPG and BAG (2001) FamCA 1453
Pierce and Pierce (1999) FLC 92-844
Robb and Robb (1995) FLC 92-555
Beil and Beil (2003) FamCA 472
Clauson and Clauson (1995) FLC 92-595

Waters and Jurek (1995) FLC 92-635

JEL and DDF (211) FLC 93-075

Phillips and Phillips (2002) FLC 93-184

Family Law Act 1975 (Cth) s79, s75(2), s72, s74

Introduction

I have before me for determination competing applications for property settlement.
The formal applications of the parties are the wife’s amended Form 3 application filed on the 6^th February 2004 in which she sought final orders for settlement of property, and the husband’s Form 3A response filed on the 30^th May 2001 in which he also sought final orders for settlement of property.
At trial the wife sought orders that the husband pay to her the sum of $1,003,879.00 and that otherwise the parties retain all items of furniture, household effects,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GBT v BJT

Details

AGLC: GBT v BJT [2004] FamCA 1160
Case: [2004] FamCA 1160
Decision Date: 16th December 2004

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered a property settlement dispute between the parties, GBT and BJT. The central disagreement concerned the valuation of the husband's interests in an accounting practice, a vineyard, and other wine industry ventures, as well as the appropriate method for the wife to receive her entitlement.

The court was required to determine the value of the husband's interests in the various business ventures, considering whether a discount should apply to his minority interest in the vineyard. Further issues included whether to account for capital gains tax and how to adjust the property division based on the parties' contributions and the factors outlined in section 75(2) of the *Family Law Act 1975* (Cth).

Strickland J reasoned that the objective of the valuation exercise was to ascertain the value to the owner, rather than adhering to a specific valuation methodology. The court determined that the value of the husband's interest in the accounting practice was to be assessed based on the agreed value between partners upon retirement. A 15% discount was applied to the husband's minority interest in the vineyard. The court found that the husband's contributions significantly outweighed those of the wife, assessing them at 87.5% to the husband and 12.5% to the wife. An additional adjustment of 5% was made in favour of the wife to account for the disparity in their income and earning capacities and other section 75(2) factors.

The final orders stipulated that the wife was to reimburse the husband for certain capital gains tax liabilities, and the husband was ordered to pay the wife the sum of $477,281.

Orders