Fogarty, Murray and Nygh JJ.: By notice of appeal dated 4 November 1985, the husband, G. Giunti, has appealed against certain orders which were made by Maxwell J. on 10 October 1985 after a trial before her on 1, 2 and 3 May and 25 and 26 July 1985.

The effect of those orders was as follows: By order no. 1 the husband was ordered to pay to the wife by way of property settlement under sec. 79 of the Family Law Act the sum of $221,000. By order no. 2 the wife was required upon the payment of that sum to her to transfer to the husband her interest in the former matrimonial home at Rose Bay and her shareholding and any other interest which she had in Giunti Construction Enterprises Pty. Ltd. Order no. 3 provided that in the event the sum was not so paid, the parties were to place the property on the market for sale and the net proceeds were to be divided between the parties in the proportions of 65 per cent to the wife and 35 per cent to the husband. Order no. 4 directed the husband to pay maintenance to the wife for the youngest child of the marriage, A, at the rate of $40 per week, together with certain school fees and expenses. By order no. 5 the wife's application for her own maintenance was ``stood over generally with liberty to restore such application to the list on 21 days' notice''. Order no. 6 dealt with the transfer to the wife of a Holden Commodore motor car. Order no. 7 directed that the child, A, be separately represented in proceedings between the parties relating to access by the husband to that child.

The parties married in New Caledonia on 3 January 1963. The husband was born in Italy on 4 June 1932, and the wife was born in New Caledonia on 5 October 1943. There were three children born of the marriage, namely L, born on 23 May 1964, G, born on 5 September 1965, and A, born on 14 April 1971. In June 1974 the parties and their children moved to Australia as permanent residents. The parties separated whilst still living in the matrimonial home in April 1983, but finally physically separated on 7 December 1983 when the wife and children left the matrimonial home. The parties have remained separate since that time. On 1 December 1983 the wife instituted proceedings for property and maintenance and it was those proceedings which her Honour heard.

Before we turn to the relevant financial matters dealt with in her honour's judgment and the challenges raised to those matters on the hearing of this appeal, it is convenient to deal firstly with grounds 1…

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 Giunti & Giunti

Details

AGLC: Giunti & Giunti [1986] FamCA 15
Case: [1986] FamCA 15
Decision Date: 18 July 1986

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal concerning a dispute between Mr Giunti and Mrs Giunti regarding the division of their matrimonial property. The primary issue on appeal was the proper characterisation and valuation of certain assets, particularly those held by companies associated with Mr Giunti, and the extent to which these assets should be included in the pool of matrimonial property available for division.

The court was required to determine whether the Family Court's initial valuation of the matrimonial home was correct, and whether it had erred in its assessment of the value of shares held by Mr Giunti in two private companies. Further, the appeal raised questions about the appropriate discount to be applied to the valuation of those shares, given their illiquid nature and the potential for tax liabilities upon realisation. The court also considered whether the primary judge had adequately taken into account the contributions of both parties to the acquisition, conservation, and improvement of the matrimonial property.

In its reasoning, the Full Court emphasised the importance of a principled approach to asset valuation, particularly in complex cases involving corporate assets. The judges applied established principles of company valuation, considering factors such as the company's profitability, assets, liabilities, and market conditions. They also reviewed the evidence presented at trial regarding the shares, including expert valuations and the potential for future capital gains tax. The court affirmed that while illiquidity and tax liabilities are relevant considerations, they should not lead to an arbitrary or excessive discount that unfairly diminishes the value of an asset for division. The court also reiterated the statutory obligation to consider all relevant contributions of each party, financial and non-financial, to the property of the marriage.

The Full Court allowed the appeal in part, finding that the primary judge had made an error in the valuation of the shares in one of the companies and in the discount applied. The court remitted the matter back to the Family Court for redetermination of the property settlement orders, with specific directions on how to approach the valuation of the shares in question.

Orders