FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bergens & Vasco [2025] FedCFamC2F 276
File number(s): ADC 1179 of 2024 Judgment of: JUDGE DICKSON Date of judgment: 13 March 2025 Catchwords: FAMILY LAW – FINANCIAL – Interim proceedings – Where the applicant seeks interim orders for a partial property settlement and periodic maintenance – Where the respondent opposes the application but seeks for the sale of the parties former home – Where the applicant gave birth post-separation to a child using donor sperm via in vitro fertilization – Where there is no application before the Court for a declaration as to parentage – Where the Court declines to make any declaration in the absence of an application and with limited evidence despite submissions made by the respondent that it should do so – Orders for the sale of the former matrimonial home – Where the court finds it is not appropriate to make an order for periodic maintenance and the application is dismissed – Orders for litigation funding in sum of $60,000 from the sale proceeds in favour of the applicant with the remainder to be held in escrow pending further orders. Legislation: Evidence Act 1995 (Cth) s 140.
Family Law Act 1975 (Cth) ss 60H, 75, 77, 90SB, 90SE, 90SF, 90SG, 106A, 117.
Assisted Reproductive Treatment Act 1988 (SA) s 3.
Family Relationships Act 1975 (SA) s 10C.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.06.
Cases cited: Bennison & Bennison [2013] FamCA 11
Bevan & Bevan (1995) FLC 92-600
Brown & Brown [2007] FamCA 151
Columb and Columb (unreported, Family Court of Australia, Fogarty J, 27 November 1987)
Coomes & Coomes (1995) FLC 92-558
Hall & Hall (2016) FLC 93-709
M & M [2006] FamCA 868
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Pirani & Pirani (No 3) [2023] FedCFamC1F 561
Qin & Donato [2023] FedCFamC1A 223
Raymond & Raymond [2024] FedCFamC1A 45
Saxena & Saxena [2006] FamCA 588
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466,
Zschokke & Zschokke (1996) FLC 92-693.
Division: Division 2 Family Law Number of paragraphs: 119 Date of hearing: 20 February 2025 Place: Adelaide Counsel for the Applicant: K. Robertson-Clark SC Solicitor for the Applicant: David Burrell & Co Counsel for the Respondent: P. Ewens Solicitor for the Respondent: Angela Ferdinandy ORDERS
ADC 1179 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BERGENS
Applicant
AND: MR VASCO
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
13 MARCH 2025
THE COURT ORDERS THAT:
1.No later than thirty (30) days from the date hereof, the parties do all such things and sign all such documents to place the property situate at B Street, Suburb C in the State of South Australia being the whole of the land comprised and described in Certificate of Title Register Book Volume … Folio … (‘the Suburb C property’) on the market for sale on the following terms and conditions:
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- [2025] FedCFamC2F 276
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CaseChat Overview and Summary
The court found it was appropriate to order the sale of the former matrimonial home and directed the parties to place the property on the market for sale. The court decided that it was not appropriate to make an order for periodic maintenance and dismissed the application for periodic maintenance. The court ordered $60,000 from the sale proceeds to be paid to Ms Bergens as litigation funding, with the remainder to be held in escrow pending further orders. The court also directed the parties to value certain assets and business interests. The court further ordered that the parties should jointly instruct valuers and that the costs of these valuations would initially be borne by Mr Vasco, with Ms Bergens to reimburse half of these costs. The court scheduled the next directions hearing and noted that the Conciliation Conference should be held face to face in accordance with the Courts protocols.
Orders
Orders of the court
ADC 1179 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS BERGENS
Applicant
AND:
MR VASCO
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
13 MARCH 2025
THE COURT ORDERS THAT:
1. No later than thirty (30) days from the date hereof, the parties do all such things and sign all such documents to place the property situate at B Street, Suburb C in the State of South Australia being the whole of the land comprised and described in Certificate of Title Register Book Volume … Folio … (‘the Suburb C property’) on the market for sale on the following terms and conditions:
(a) The selling agent shall be D Company or such other real estate agent as the parties agree in writing or in default of agreement, such real estate agent as shall be appointed by the Secretary of the Real Estate Institute of South Australia (‘the appointed sales agent’);
(b) The Suburb C property shall be sold by public auction unless otherwise recommended in writing by the appointed sales agent;
(c) The reserve price for the Suburb C property shall be $3.6 million or such reserve price (whether higher or lower) as may be recommended in writing by the appointed sales agent; and
(d) The parties are at liberty to accept an offer to purchase the Suburb C property prior to the first auction if recommended by the appointed sales agent and agreed by each of them in writing.
2. The parties shall do all such things to ensure that:
(a) The appointed sales agent is permitted access to the Suburb C property for all inspections; and
(b) The Suburb C property is presented in a clean and tidy state for all inspections;
(c) Unless otherwise agreed in writing between the parties, all recommendations by the appointed sales agent with respect to any pre-sale repairs, preparation, styling and marketing are followed.
3. Should any upfront costs be required to comply with Order 2(c) herein, then such costs shall be paid at first instance by the Respondent and with the Applicant to reimburse her half-share of such costs at final settlement of the parties’ applications for final orders.
4. If the Suburb C property does not sell at the said auction date and the parties are presented with offers subsequent to the first auction, the parties shall accept any private offer that is equal or greater to $3.4 million or such other sum as recommended by the appointed sales agent.
5. In the event that the Suburb C property is on the market for three (3) months and remains unsold, then the property shall be immediately placed on the market for sale with the reserve price being 95 per cent of the previous reserve price with the parties to accept any offers on the day of any subsequent auction being 92.5 per cent or more of the most recent reserve price.
6. The parties do all such things and sign all documents necessary to facilitate the preparation of a Form 1 Vendor’s Statement for the sale.
7. The parties sign all such documents required to complete the marketing and sale including a Sales Agency Agreement and Contract of Sale.
8. Unless otherwise agreed in writing, Mr F of E Company be appointed as the conveyancer to undertake the conveyance of the Suburb C property.
9. The net proceeds of sale of the Suburb C property, be disbursed as follows:
(a) In discharge of any mortgage secured against the Suburb C property;
(b) In payment of any necessary sales or agents costs or commissions;
(c) The sum of $60,000 to the Applicant by way of litigation funding pursuant to section 117 of the Family Law Act 1975 (Cth); and
(d) The balance to be held in the nominated Conveyancer’s trust account pending written agreement of the parties or further order of the Court.
10. From the sum referred to in Order 9(c) herein and prior to the said sum being disbursed to the Applicant, the Applicant shall reimburse to the Respondent her one half share of the costs to be paid by the Respondent at first instance pursuant to Orders 11, 12 and 13 herein.
11. No later than thirty (30) days from the date of this Order, the parties shall do all such things to jointly instruct G Company to value all chattels, furniture and effects and any other agreed items owned by the parties or either of them.
12. Forthwith, the parties shall do all such things to jointly instruct Mr J of H Company to value the Respondent’s interest in the business known as K Pty Ltd.
13. Forthwith, the parties shall do all such things to jointly instruct L Company to value the Respondent’s interest in the property situate at M Street, Suburb N in the State of South Australia.
14. The costs for the valuations referred to in Orders 11, 12 and 13 herein shall be paid at first instance by the Respondent and with the Applicant’s one-half share to be reimbursed to the Respondent pursuant to Order 10 herein.
15. Upon settlement the Suburb C property, Order 4 of the Orders made 23 August 2024 shall be discharged.
16. The parties shall do all acts, deeds and things and sign and execute all documents necessary to give full force and effect to this Order, provided that if either the Applicant or the Respondent shall refuse or neglect to execute a document necessary to give full force and effect to this Order within seven (7) days after the same shall have been tendered to him or her for the purposes of execution, then and in such an event pursuant to section 106A of the Family Law Act 1975 (Cth) a Judicial Registrar or Deputy Registrar of the Federal Circuit and Family Court of Australia upon proof by affidavit of such refusal or neglect is hereby appointed to execute and if in his or her opinion it shall be necessary to do so to settle the same and to do all such other acts and things as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly and the party in default shall pay the other party's costs as agreed or as taxed.
17. All other extant interim applications are hereby dismissed.
18. The proceedings are listed for directions before Judicial Registrar Roulstone on 2 July 2025 at 2:30pm with such hearing to take place via Microsoft Teams, for the preparation and allocation of a Conciliation Conference date NOTING THAT such Conciliation Conference should take place on a face to face basis in accordance with the Courts protocols.
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).
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.
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Background to the litigation
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Evidence Before The Court
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Reasons for decision
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Legal Principle Established
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