Bergens & Vasco
[2025] FedCFamC2F 276
•13 March 2025
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:
(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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
These proceedings come before the Court for the determination of competing interim financial applications following the breakdown of a relationship between the applicant, Ms Bergens (‘Ms Bergens’) and the respondent, Mr Vasco (‘Mr Vasco’).
The parties are in dispute over all manner of issues and are a long distance away from the finishing line despite the proceedings having commenced nearly 12 months ago.
The parties’ competing interim applications came before the Court for interim defended hearing on 20 and 27 February 2025. These are the Court’s Reasons following the hearing.
DOCUMENTS RELIED UPON
The Applicant, Ms Bergens
Ms Bergens file the following documents:
(1)Initiating Application filed 18 March 2024;
(2)Affidavit of Ms Bergens filed 18 March 2024;
(3)Affidavit of Ms Bergens filed 4 June 2024;
(4)Responding Affidavit of Ms Bergens filed 24 January 2025;
(5)Financial Statement of Ms Bergens filed 24 January 2025; and
(6)Costs Notice filed 12 February 2025.
Ms Bergens provided an updated Costs Notice filed 20 February 2025, a balance sheet filed 17 February 2025, a draft Minute of Order, and a ‘List of Authorities’ which also included reference to legislative provisions being section 10C of the Family Relationships Act 1975 (SA) and section 3 of the Assisted Reproductive Treatment Act 1988 (SA).
Ms Bergens tendered and relied upon Exhibits A1 to A3 inclusive.
The Respondent, Mr Vasco
Mr Vasco filed an Outline of Case Document (Interim Hearing) on 17 February 2025 which sets out at Part B that he relies upon the following documents:
(1)Affidavit of Mr Vasco filed 7 May 2024;
(2)Affidavit of Mr Vasco filed 23 January 2025;
(3)Affidavit of Mr Vasco filed 23 January 2025;
(4)Amended Response to Initiating Application filed 23 January 2025;
(5)List of Documents filed 23 January 2025; and
(6)Financial Statement of Mr Vasco filed 23 January 2025.
Mr Vasco also relied upon a Costs Notice dated 12 February 2025, a balance sheet provided to the Court on 19 February 2025 and an email dated 25 February 2025 from his solicitor setting out a list of authorities and legislative provisions relied upon.
Mr Vasco tendered and relied upon Exhibits R1 to R3 inclusive.
ORDERS SOUGHT
The Applicant, Ms Bergens
In her Amended Initiating Application filed 4 June 2024, Ms Bergens seeks interim orders in the following terms:
1. That the respondent be restrained and injunctions be granted restraining the respondent from approaching or remaining in the vicinity of the property situate at [B Street, Suburb C] in the State of South Australia, and from communicating with the applicant in any way other than via her legal representatives, and that the applicant do have the sole use and occupation of the said property pending the making of final orders.
2. That the respondent do provide, by way of disclosure, the following documents:-
(a) A copy of all of his bank statements, both debit and credit, and those of any bank account in which he has signing rights, from June 2018 to the date of resolution or settlement.
(b) A copy of his tax returns and financial statements, and those of any entity in which he has, or has had an interest for the same period.
(c) Full particulars of his superannuation, and any change thereof since the commencement of the relationship.
(d) Full particulars of all of the documents giving rise to the Deed of settlement made in December 2021, including all documents and records, and an exchange of communications and advice between the respondent and his entities, and [O Pty Ltd].
(e) All documents surrounding the settlement of the [PP Trust] and the incorporation of [MM Pty Ltd] and [OO Pty Ltd] and the acquisition of the [Town P] property, together with the provision of the services and the establishment of the corporate structure, which was the subject of the dispute between the parties in December 2021.
(f) The respondent's telephone records for the duration of the relationship.
(g) The respondent’s Will, Power of Attorney, and Advanced Care Directive for the entirety of the relationship, and any change thereof for the period of the relationship.
(h) All applications for finance and statement of financial position made by the respondent’s (sic) since the date of cohabitation.
3. That until further order the respondent pay and discharge all mortgage repayments with respect to Memorandum of Mortgage No. […].
4. That the respondent do pay to the applicant the sum of $135,000 by way of partial settlement and in the alternative:-
(a) That pursuant to section 117 of the Family Law Act within seven (7) days of the payment by or on behalf of the respondent of any money in payment of accounts rendered by the respondent's solicitors in respect of these proceedings and rendered by any accountant valuer barrister or expert engaged by the respondent in these proceedings, the respondent pay or cause the same amount of money to be paid to the applicant's solicitor within one day after the amount having been so paid.
(b) That all money paid to the respondent's solicitors by or on behalf of the respondent referred to in the previous Order be held on trust by the respondent's solicitor and not applied in payment of his legal costs and outlays until such time as the amount has been paid by or on behalf of the respondent to the applicant's solicitor and in the event that such payment to the applicant's solicitors has not been made within seven (7) days after the payment on behalf of the respondent of any money referred to in the preceding Order, the respondent direct his solicitors to pay 50% of the amount so held by them on trust to the solicitors for the applicant.
(c) That the applicant be authorised to use the funds held in her solicitor's Trust Account from time to time in respect of meeting any costs of and incidental to these proceedings.
(d)That the categorisation of the said sum be referred to the Trial Judge upon determination of the substantive Application of the applicant.
5. That the parties do attend mediation or a conciliation conference at joint expense.
7. That pursuant to Section 90SE of the Family Law Act 1975 the respondent do pay to the applicant a sum of $2,000 per week by way of maintenance.
8. That the respondent be restrained and injunctions be granted restraining him from transferring assigning disposing of or otherwise dealing with any asset pending the making of final orders.
9. That the respondent's application be stayed until further order
10. That this application be listed urgently for hearing.
Procedural
11. That the property situate at [Q Street, Town P] be valued by [R Company] at joint expense on the basis that the respondent pay for the costs of valuations in the first instance, and that the applicant reimburse him upon the making of final orders.
12. That the value of the personal motor vehicles be assessed by way of Redbook values to be obtained by the parties.
13. That (noting the business i.e. goodwill value, is not agreed and the orders have been made requiring the valuation of all assets not agreed) the business [K Pty Ltd] be valued by a forensic accountant as agreed and in default of agreement [Mr S] or [Mr J], at joint expense on the basis that the respondent pay for the cost of the valuation in the first instance, and that the applicant reimburse him upon the making of final orders.
14. That the parties' personal chattels be valued by an agreed valuer at joint expense on the basis that the respondent pay for the costs of valuation in the first instance, and that the applicant reimburse him upon the making of final orders.
15. That within fourteen (14) days the respondent do file an answering affidavit to the applicant's affidavit filed on 17 March 2024 so as to determine what factual issues are in dispute and what factual issues are in contention.
16. That the applicant be granted leave to issue more than five subpoenas in this action, to include documents that the respondent has failed to disclose from:-
(a) CBA;
(b) NAB:
(c) His accountant [O Pty Ltd]:
(d) [K Pty Ltd] (per the directors [Mr U] and [Mr T]);
(e) Services SA;
(f) [V Company] Conveyancers:
(g) [W Company]:
(h) Telstra;
(i) [Ms X].
17. That the respondent within seven (7) days file an updated Financial Statement to include all of the bank statements, assets and resources he has failed to disclose to date.
18. That the respondent do give further and better disclosure of the following documents:
(a) Copies of statements of all accounts in which he has signing rights, including:-
(i)[K Pty Ltd] account statements from 1 January 2023 to date:
(ii)Account statements for the CBA account ending […]19. from 1 January 2023 to current:
(b) The Statutory Declaration executed by him to Services SA in about March 2022:
(c) The Trust Deeds for all trusts in which he has an interest:
(d) All documents and records in relation to his instructions to the conveyancers [V Company] from December 2023 to date, to include settlement statements and contracts for purchase:
(e) All documents in relation to his [Motor Vehicle 1] and other benefits received by him as a result of his employment with [K Pty Ltd];
(f) His telephone account statements from June 2018 to May 2019, to include a list of all calls made, received and text messages;
(g) The last four BAS statements for [K Pty Ltd];
(h) A copy of all of his communications with [Ms X] since December 2023 with respect to monies give (sic), advanced or lent to her from him, or any entity under his control.
19. That the respondent pay the applicant’s costs of an incidental to these proceedings.
The Respondent, Mr Vasco
In his Response to Initiating Application filed 23 January 2025, Mr Vasco seeks interim orders in the following terms:
10.That in the event the applicant is unable to continue to meet 50% of the mortgage repayments over the [Suburb C] property until trial, the said property be placed on the market for sale within thirty (30) days of the date of an order on the following terms and conditions:-
10.1.Paragraph 2 of the Orders of 6 June 2024 be discharged.
10.2.That the applicant do all such things to vacate the [Suburb C] property within twenty-one (21) days of this Order, leaving all furniture and effects (excluding her personal possessions and baby clothes, nursery furniture, toys and equipment required for her child) in the property;
10.3.Paragraph 3 of the Order of 6 June 2024 continue until such time that the sale of the [Suburb C] property settles.
10.4.The respondent shall nominate three (3) real estate agents to be appointed for sale and provide same to the applicant via her solicitors within seven (7) days;
10.5.Within seven days of receiving the respondent's nominated agents, the applicant shall nominate one (1) of the respondent's proposed real estate agents to be appointed for the sale, via the respondent's solicitors;
10.6.In the event the applicant fails to elect a real estate agent pursuant to paragraph 10.4, the respondent shall be at liberty to nominate an agent of his choosing to be appointed for sale;
10.7.The [Suburb C] property shall be sold by public auction, unless otherwise recommended by the appointed real estate agent;
10.8.The reserve price for the [Suburb C] property shall be such price range as agreed between the parties in writing and failing agreement, such reserve as is recommended by the appointed real estate agent;
10.9.The parties may only accept an offer to purchase the [Suburb C] property prior to the first auction if agreed by them in writing;
10.10.The parties shall do all such things to ensure:
10.10.1.The appointed real estate agent is permitted access to the home for all inspections; and
10.10.2.The [Suburb C] property is left in a clean and tidy condition for all inspections;
10.10.3.That unless otherwise agreed in writing between the parties, all recommendations by the appointed real estate agent with respect to any pre-sale repairs/preparation/styling and marketing are followed.
10.11.That in the event that upfront costs are required to comply with paragraph 10.10.3 herein, that unless otherwise agreed in writing, the parties each meet 50% of the upfront costs, with such costs to be reimbursed to each of them at settlement of the [Suburb C] property.
10.12.The applicant do all such things to ensure that the broken sliding door for which she received an insurance payment is repaired to a compliant standard prior to listing of the property for sale, with such repair to be at the applicant's expense.
10.13.The accepted sale price of the [Suburb C] property shall be such price as agreed between the parties in writing and failing agreement, such price that is equal or greater to $3,500,000;
10.14.In the event that the [Suburb C] property does not sell at the first auction date and the parties are presented with offers subsequent to the first auction, the parties accept any such private offer that is equal or greater to $3,300,000;
10.15.In the event that the [Suburb C] property is on the market for 3 months and remains unsold, that the property immediately be placed on the market for sale with the reserve price being 95% of the previous reserve price with the parties to accept any offers on the day of any subsequent auction being 92.5% or more of the most recent reserve price: and
10.16.The parties do all such things and sign all such documents necessary to facilitate the preparation of a Form 1 Vendor's Statement for the sale:
10.17.The parties sign all such documents required to complete the sale, including a Contract of Sale;
10.18.That unless otherwise agreed in writing, [Mr F] of [E Company] be appointed as the conveyancer to undertake the conveyance of the property:
10.19.That the net proceeds of sale of the said property be distributed as follows:
10.19.1.In discharge of any mortgage secured against the property:
10.19.2.In payment of any necessary sales or agent costs or commissions:
10.19.3.In reimbursement to each of the parties for any funds expended in compliance with paragraph 10.10 herein:
10.19.4.The balance to be held in the nominated conveyancer's trust account pending written agreement of the parties or further Order of this Honourable Court.
10.20.That upon settlement of the [Suburb C] property taking place, paragraph 3 of the orders of 6 June 2024 be discharged.
10.21.That no later than the business day prior to settlement of the [Suburb C] property, in the absence of an agreement in writing as to who should retain furniture and effects currently at that property, the contents (or such of the contents not agreed) are to be removed by "[Y Company]" stored at [Z Venue, Suburb AA] with the costs of the removalist and storage facility to be at the parties joint and equal expense.
11.Pursuant to section 106A of the Family Law Act, if either the husband or the wife shall refuse or neglect to execute any document necessary to give effect to the terms hereof within seven (7) days after the same shall have been tendered to him or her for that purpose then and in such case a Registrar of this Court upon proof by affidavit of such refusal or neglect is hereby appointed to execute any such document on behalf of either party hereto and if in his opinion it shall be necessary so to do to settle the same and to do all such other acts and things and execute all such other documents as shall be necessary to give full force and effect hereto and shall execute and do the same accordingly.
ISSUES IN DISPUTE
At hearing, the issues in dispute were numerous.
The issues in dispute on behalf of Ms Bergens are summarised as follows:
(1)An application for the payment to her by Mr Vasco for the sum of $135,000 by way of “partial settlement”;[1]
(2)In the alternative to (1) above, an order for a ‘dollar for dollar’ costs made pursuant to section 117 of the Family Law Act 1975 (Cth);
(3)The payment of $2,000 per week by way of maintenance pursuant to section 90SE of the Family Law Act 1975 (Cth);
(4)Injunctions to restrain Mr Vasco from transferring, assigning, disposing or otherwise dealing with any asset pending the finalisation of proceedings;
(5)The appointment of a joint valuer to value certain assets of the parties or either of them, and who should pay for such valuations at first instances;
(6)Disclosure from Mr Vasco which Ms Bergens alleges is insufficient;
(7)Subpoenas; and
(8)The terms upon which the property situate at B Street, Suburb C in the State of South Australia should be sold if that is the decision of the Court.
[1] See the Affidavit of Ms Bergens filed 4 June 2024 at paragraph 25 wherein Ms Bergens confirms that she seeks litigation funding in the sum of $135,000 or a ‘dollar for dollar’ order, or the return of $135,000 from the joint mortgage offset account on the basis that the characterisation of such funds be reserved to the Trial Judge. At the hearing, Ms Bergens sought a $200,000 payment if funds were to be paid from the sale of the Suburb C property and not by Mr Vasco personally.
At hearing, Ms Bergens did not press the orders for specific disclosure from Mr Vasco or subpoenas.
The issues in dispute on behalf of Mr Vasco are summarised as follows:
(1)In the event that Ms Bergens is unable to continue to pay 50% of the mortgage repayments for the property situate at B Street, Suburb C in the State of South Australia, then the said property be placed on the market for sale within 30 days of an order of the Court being made upon certain terms and conditions;
(2)Valuations and the cost of the valuations; and
(3)Ms Bergens’ application otherwise be dismissed.
To their credit, by the conclusion of the hearing the parties had agreed to mutual interim orders for the preservation of various assets.
BACKGROUND
Ms Bergens was born in 1984 and is aged 40 years.
Mr Vasco was born in 1982 and is aged 42 years.
There is a major dispute between the parties as to the duration of their relationship. Ms Bergens contends that the parties cohabited during the period June 2018 to June 2021, and then again from September 2022 to December 2023. She states that a sexual relationship existed during the period June 2018 until August 2023. Further, Ms Bergens states that the parties’ “emotional relationship” ended in about November 2023 and that Mr Vasco left the property situate at B Street, Suburb C in the State of South Australia (‘the Suburb C property’) in December 2023 following an incident of “domestic violence.”[2]
[2] See the Affidavit of Ms Bergens filed 18 March 2024 at paragraph 12.
Mr Vasco disputes the length of the relationship as asserted by Ms Bergens. He contends that the parties lived together in a genuine domestic basis for 26 months only during the following periods:
·From March 2020 to 11 June 2021; and
·From December 2022 to 16 November 2023.
Mr Vasco disagreed that the parties were living together or in a de facto relationship commencing from 2018.
A careful reading of the parties’ documents confirms that there is very little upon which the parties agree. For the purposes of this interim hearing, there is no need for the Court to make a finding as to the actual date of separation or the precise length of the relationship. This is because Mr Vasco has conceded the jurisdiction of the Court to make orders for the division of their joint and separate property.
The property dispute between the parties is complicated further by the decision made by them jointly to embark on in vitro fertilisation (‘IVF’) treatment at BB Clinic to enable them to start a family in the latter part of their relationship. It was during the IVF treatment process that Mr Vasco discovered that he is unable to have biological children of his own. Ms Bergens then purchased donor sperm from “DD Centre” for the sum of $7,000.
As a necessary part of their “IVF journey”, the parties were required to undertake personal counselling. Mr Vasco contends that after the counselling he was informed that the IVF procedure could not be approved due to concerns held by BB Clinic as to the nature of their relationship.
In late 2023, Mr Vasco signed a Termination document.[3]
[3] See the Affidavit of Mr Vasco filed 23 January 2025 at Annexure C.
Subsequently, Ms Bergens decided that she would proceed with the IVF treatment as a single woman. Mr Vasco agrees that he did not oppose Ms Bergens continuing with the IVF treatment because he knew of her desire to become a mother. Ms Bergens gave oral evidence that the parties mislead BB Clinic about their separation so that she could continue her “IVF journey” as a single woman whilst still in a relationship with Mr Vasco.
Ms Bergens fell pregnant in 2024 and gave birth to a daughter.
In circumstances where there is a major factual dispute between the parties, it is important for the Court to take notice of the matters which are the subject of agreement even at this interim stage.
From the pleadings, the Court can observe that the parties agree the following:
(a)In mid-2021, the parties purchased a property at Q Street, Town P in the State of South Australia (‘the Town P property’). The Town P property was purchased not in their personal names but using a “three-tiered company”;[4]
[4] See the Affidavit of Mr Vasco filed 7 May 2024 at paragraph 13.
(b)In June 2021, the parties separated;
(c)In December 2021, the parties reached agreement for the division of their assets. A Deed of Settlement and Release was prepared by CC Law Firm which provided for Mr Vasco to pay certain settlement sums to Ms Bergens;
(d)In September 2022 (says Ms Bergens) or October 2022 (says Mr Vasco), the parties reconciled;
(e)In late 2022, the parties purchased the Suburb C property for the sum of $3.3 million in their joint names. The parties paid differing sums to enable the purchase. A mortgage in joint names was secured by Commonwealth Bank in the sum of approximately $2,562,000;
(f)At the time the Suburb C property was purchased, both parties were high income earners. The mortgage repayments for interest only are currently $16,000 per month;
(g)In January and February 2023, Mr Vasco transferred the total sum of $350,000 into the offset account of the mortgage attached to the Suburb C property in order to reduce the interest payments on the mortgage;
(h)In 2023, the parties agreed to commence having a family. The parties engaged BB Clinic for IVF treatment. During the treatment, Mr Vasco was informed that he was infertile and unable to have his own biological children. Ms Bergens then purchased two sperm vials from “DD Centre” so as to proceed with a pregnancy;
(i)In August 2023, the parties attended two sessions of “mandatory donor implications counselling” with Ms EE (‘Ms EE’) at BB Clinic;
(j)In September 2023, Mr Vasco attended an individual supportive counselling session with Ms EE. Ms EE subsequently expressed concerns about the relationship between the parties to their treating doctor in an email;
(k)In September 2023, Ms Bergens emailed the Donor Team at BB Clinic in response to advice that she had received from them which informed her that the fertility treatment had been put on hold due to Ms EE’s assessment that Mr Vasco was “not ready” to engage in the process;
(l)A few days later, Mr Vasco emailed the Donor Team at BB Clinic and advised that the parties had agreed for Ms Bergens to take “full ownership” of the donor vials. Ms Bergens was copied into this correspondence;
(m)In October 2023, an email was sent from Donor Enquiries to Mr Vasco advising that Ms Bergens had informed them that their relationship status had changed and that the parties had now separated. Mr Vasco was asked to verify this fact in writing upon which the required documentation would be sent to relinquish his reservation in the donor sperm vials;
(n)In November 2023, Mr Vasco emailed Donor Enquiries at BB Clinic and confirmed that the parties were no longer in a relationship. The email from him was in exact terms as that dictated to him by Ms Bergens in an email of the same date;[5]
[5] See Exhibit A3.
(o)Two days later, Mr Vasco signed a Termination of the use of Donor Sperm in which he confirmed that he wished to terminate the use of the recruited sperm;
(p)On the same day, Ms Bergens attended counselling at BB Clinic. The Donor Counselling Summary confirms the advice provided by Ms Bergens that the parties had recently separated and that she intended to continue with treatment as a single woman;
(q)In late 2023, the IVF process commenced with the transfer of a fertilised embryo occurring in 2024;
(r)In December 2023, Mr Vasco withdrew the sum of $270,000 from the offset account and retained it. Ms Bergens withdrew the sum of $30,000 and did likewise. From those funds, it is not controversial that Mr Vasco later transferred approximately $158,000 to his current girlfriend, Ms X;
(s)In 2024, Ms Bergens became pregnant using BB Clinic;
(t)On 18 March 2024, Ms Bergens filed and Initiating Application seeking orders for property settlement and litigation funding;
(u)On 7 May 2024, Mr Vasco filed a Response seeking orders for property settlement, the return of personal items, payment of the Suburb C property’s mortgage and other procedural orders;
(v)In mid-2024, Ms Bergens received correspondence from her employer advising that her role with FF Company would no longer be required as and from the following month;
(w)On 6 June 2024, the Court made orders by consent which provided for various financial orders including that:
(i)Ms Bergens shall have sole use and occupation of the Suburb C property;
(ii)Mr Vasco would pay a sum of money to bring the mortgage secured over the Suburb C property “up to date”;
(iii)Mr Vasco pay to Ms Bergens the sum of $50,000 by way of interim property settlement;
(iv)Valuations and for the parties to attend a private mediation; and
(v)During the period of the adjournment, the parties agreed that they would each pay 50% of the principal and interest due on the mortgage, which amounted to $2,000 each per week;
(x)In mid-2024, Ms Bergens’ employment with FF Company came to an end;
(y)In mid-2024, a severance payout in the sum of $197,828.10 was deposited into Ms Bergens’ GG Bank account. Since that time, Ms Bergens has not worked;
(z)On 23 August 2024, the order for the equal payment of the mortgage by the parties was continued until further order;
(aa)In mid-2024, Ms Bergens obtained an interim private Intervention Order against Mr Vasco from the Magistrates Court of South Australia.[6] There is no dispute that the said Intervention Order has now been revoked, and that Ms Bergens has incurred costs arising from this litigation for which she will be solely responsible;
(bb)In 2024, Ms Bergens gave birth to a daughter, HH. Since the birth of HH, Ms Bergens has remained at home caring for her infant daughter; and
(cc)On 13 February 2025, the parties agreed to orders that provided for various pieces of real estate to be valued by L Company at their joint and equal expense on the basis that Mr Vasco would pay for the costs of the valuations at first instance and with Ms Bergens to reimburse him or her half share upon the making of final orders.
[6] See the Affidavit of Angela Claire Ferdinandy filed 19 September 2024 at Annexure A.
NATURE OF AN INTERIM HEARING
It is important for the parties to understand that this is an interim hearing. The evidence available at an interim hearing is limited in nature. I have only heard brief evidence from the parties.
The oral evidence was useful because it allowed the Court to hear from the parties themselves rather than each of them remaining mute behind their counsel. I have been able to form preliminary impressions of the parties on the limited cross-examination permitted by the Court which has been helpful in determining the current applications.
However, I am unable to make findings about the evidence or to test the veracity of each parties’ allegations which were not ventilated. This is particularly relevant to the submission made by senior counsel for Mr Vasco that the Court should make a finding as to parentage of the child HH. No such application is before the Court and the evidence on this topic was fleeting at best.
As I observed to counsel, there is some irony in the competing positions taken by the parties on parentage at this interim stage.
Ms Ewens was at pains to emphasise in her final address that Ms Bergens does not seek a declaration as to parentage. This is despite counsel referring to specific State legislation in her List of Authorities and section 60H(3) of the Family Law Act 1975 (Cth) (‘the Act’). It could not be denied that a finding as to parentage in favour of Ms Bergens would have a bearing on the payment of maintenance and/or the division of assets.
Senior counsel for Mr Vasco sought a finding that her client is not a parent despite her client having no application before the Court.
At this interim hearing with limited evidence, and more importantly, with no formal applications before the Court, I do not consider that the Court needs to confront this issue to determine the interim applications. Rather, I consider that it would be highly improper for me to do so.
THE PARTIES’ POSITIONS
The Applicant, Ms Bergens
Ms Bergens contends that there is a “significant imbalance” between the parties’ earning capacities and resources. She highlights that having been made redundant in mid-2024, she is now a sole parent to the child HH. Further, that Ms Bergens is estranged from her family and, therefore, has no capacity to return to work within the next 12 months.
Ms Bergens states that a substantial amount of her redundancy payment has already been used to pay general living expenses, birthing costs, legal fees and mortgage payments. She contends that by the end of February 2025, her remaining funds will be somewhere in the vicinity of $25,000 or thereabouts. Ms Bergens did not provide evidence of an itemised breakdown of her expenditure.
Ms Bergens argues that her only income is the rental income she receives from her property situate at JJ Street, Suburb KK in the State of South Australia (‘the Suburb KK property’) through a holiday rental platform, and from this, she is required to meet the mortgage for the Suburb KK property which is in her sole name.
Ms Bergens points to Mr Vasco’s far greater income and the disparity in their lifestyles observing that Mr Vasco transferred an amount of $158,000 to his current girlfriend, Ms X, during the period March 2024 to April 2024 after Ms Bergens commenced these proceedings.
Ms Bergens argues that she requires funds to meet her ongoing legal costs and that she does not have any other funds to meet those costs.
If the Court was not inclined to make an order for a lump sum payment, Ms Bergens seeks what is known as a ‘dollar for dollar’ order to ensure that she is properly represented at Trial.
Ms Bergens also seeks orders for maintenance in the sum of $2,000 per week. She contends that she is unable to maintain herself adequately and that Mr Vasco has ample funds from which he could meet her claim.
On the question of payment of outstanding valuations, which include the business “K Pty Ltd”, the business premises situate at M Street, Suburb N and the parties’ personal chattels, Ms Bergens argues that Mr Vasco should meet these costs at first instance given the disparity of their income and resources.
Ms Bergens presented under cross-examination as an intelligent and resourceful individual. She has clearly contemplated the possibility of the Suburb C property being sold given her evidence about consultations with various local real estate agents.
The Respondent, Mr Vasco
Mr Vasco argues that, given the facts of this case, the Court should adopt an asset-by-asset approach for the division of the parties’ assets at Trial. It is his position that he has only conceded the jurisdiction for this Court to make final orders because the parties jointly own the Suburb C property.
He contends that there is no evidence before the Court to support Ms Bergens being able to refinance the existing mortgage into her sole name. Mr Vasco does not seek to retain the Suburb C property, and he argues that Ms Bergens is simply not in a position to refinance the loan into her sole name.
Mr Vasco argues that the Suburb C property is a home that neither of the parties can afford to retain, and that the Court should act now to relieve the parties of an enormous financial burden in paying $16,000 per month in mortgage repayments plus outgoings, insurance, rates and taxes and maintenance. It is Mr Vasco’s position that Ms Bergens could return to reside in the Suburb KK property which would provide affordable accommodation for Ms Bergens and her child.
Mr Vasco states that he would be prepared for Ms Bergens to receive $50,000 from the net proceeds of sale but not in the quantum sought by her being $200,000. Mr Vasco argues that the sum of $200,000 may exceed the totality of her actual claim at final hearing. It is his position that Ms Bergens currently does not require litigation funding because her Costs Notice filed 20 February 2025 does not evidence any legal fees outstanding. He argues that Ms Bergens received the sum of $50,000 in June 2024 and then the sum of $197,828.10 in mid-2024, the disbursement of which has not been clearly explained. Further, there are other options available to Ms Bergens to meet her legal fees which appear not to have been explored.[7]
[7] See the Outline of Case Document filed by Mr Vasco on 17 February 2025 at paragraph 11.
On the question of maintenance, Mr Vasco argues that it was Ms Bergens’ personal choice to become a single parent, and that Mr Vasco is not required by any law to financially support Ms Bergens’ dream to become a parent. He strongly argues that he had withdrawn his consent to the use of the donor sperm as evidenced by Annexure C to his affidavit filed 23 January 2025. It was Ms Bergens’ decision to not seek further employment upon being retrenched given that she was previously employed as a highly qualified professional.
As to the question of valuations, Mr Vasco does not vigorously oppose valuations of his business or the parties’ personal chattels but resists any order that would see him paying the cost of the valuations at first instance. It is his view that the costs of any further valuations should be shared upfront rather than Ms Bergens reimbursing him at final settlement.
THE PARTIES’ BALANCE SHEETS
The parties each completed a balance sheet which outlines their respective positions on the assets and liabilities available for division.
Ms Bergens’ balance sheet as filed on 17 February 2025 outlines her position as follows:
DESCRIPTION OWNERSHIP APPLICANT’S VALUE 1. B Street, Suburb C Joint $3,300,000 2. Mortgage over Suburb C Joint ($2,562,000) 3. JJ Street, Suburb KK Applicant $600,000 4. Mortgage over Suburb KK Applicant ($435,000) 5. Q Street, Town P Respondent $1,800,000 6. Mortgage over Q Street, Town P Respondent ($752,000) 7. Motor Vehicle 2 Applicant $55,000 8. Motor Vehicle 2 debt Applicant ($35,400) 9. Motor Vehicle 3 Respondent $150,000 10. Household contents Joint $150,000 11. Wife's savings Applicant $28,704 12. Husband's savings Respondent $1,180,000 13. Business Respondent $2,400,000 14. Motor Vehicle 4 Respondent $7,500 Total $5,886,804 SUPERANNUATION 1. Applicant's super Applicant $405,558 2. Respondent's super Respondent $341,000 Total $746,558 ADD BACKS 1. Moneys paid by respondent to Ms X $158,000 2. Moneys dissipated by respondent since separation Not disclosed Total Not known
Mr Vasco provided a balance sheet to the Court in which he seeks for the Court to adopt a three-pool approach. Mr Vasco outlines his position as follows:
Pool 1: Joint Assets Available for Division
DESCRIPTION OWNERSHIP RESPONDENT’S VALUE 1. B Street, Suburb C Joint E$3,300,000[8] 2. Mortgage registered over Suburb C Joint ($2,565,168) 3. CBA (Suburb C Offset) Joint $8 4. Partial property settlement paid to Applicant by respondent in June 2024 Applicant $50,000[9] 5. Half of mortgage arrears paid by Respondent for Applicant’s Benefit in June 2024 Applicant $23,973[10] 6. Applicant’s half share of real estate valuations paid by Respondent Applicant E$2,200[11] 7. Applicant’s half share of mediation cost for Ms LL paid by Respondent Applicant $2,500[12] Total $813,513 [8] To be valued pursuant to the Orders made 13 February 2025.
[9] Paid pursuant to Order of 6 June 2024 and categorised as partial property settlement.
[10] Paid pursuant to Order of 6 June 2024 but yet to be categorised. Respondent argues same should be accounted for as further partial property settlement.
[11] To be paid pursuant to Order of 13 February 2025
[12] Paid pursuant to Order of 6 June 2024.
Pool 2: Respondent’s Separate Assets and Liabilities
DESCRIPTION RESPONDENT’S VALUE 1. Q Street, Town P (owned via MM Pty Ltd) $1,000,000[13] 2. Mortgage over Town P ($745,328) 3. K Pty Ltd (30% interest) $1,800,000[14] 4. CBA (Offset) #...20 as at 19/02/2025 $4,242 5. NAB (Everyday) #...29 as at 19/02/2025 $41,222 6. NAB (Everyday) #...20 as at 19/02/2025 $639 7. NAB Business #...06 as at 19/02/2025 $4 8. NAB #...37 as at 19/02/2025 $63 9. CBA #...29 (joint with Mr NN) as at 19/02/2025 $7 10. NAB Credit Card NIL 11. Household contents $50,000 12. Motor Vehicle 4 (1/7th share) $7,000 13. Motor Vehicle 3 $150,000 14. Vendor Finance Loan (owed by QQ Trust to Resp) $142,615 15. 2023 Balance of Income Tax Payable ($Nil)[15] 16. 2024 Income Tax Payable estimate (E$16,722)[16] 17. Future Tax Liability (Top-up Tax) estimate (E$400,171)[17] 18. Estimated liability for accountant fees for 2024 Financials (E$15,000) 19. Cost liability due to Respondent by Applicant in Magistrates Proceedings (Resp) E$6,600 20. Superannuation (includes NAB account #...60) E$449,074[18] Total $2,474,245 FINANCIAL RESOURCES 8.(sic) Funds advanced to Ms X for IVF and rent E $60,000 [13] To be valued pursuant to Order of 13 February 2025
[14] Figure adopted from calculations for buy in of minority shareholder in 2023.
[15] Recently paid in full by Respondent.
[16] Updated estimate liability for 30 June 2024 financial year as per draft Financial Statements.
[17] Updated estimate figure as per draft 2024 Financial Statements.
[18] Draft 2024 Financial Statements completed 18 February 2024 – updated estimate figure reflects increase in Suburb N property and additional contributions made by Respondent in 2024 financial year.
Pool 3: Applicant’s Separate Assets & Liabilities
DESCRIPTION RESPONDENT’S VALUE 1. JJ Street, Suburb KK, $750,000[19] 2. Mortgage over JJ Street, Suburb KK property ($436,294) 3. GG Bank Savings (at 06/02/2025) $61,089 4. Cryptocurrency $1,900[20] 5. Credit Card $798[21] 6. Motor Vehicle 2 E$95,000[22] 7. Finance over Motor Vehicle 2 ($35,392) 8. Household contents (incl of designer items) E$100,000 9. Cost liability due to Respondent in Magistrates Proceedings (E$6,600) 10. Superannuation $405,558 Total $936,059 [19] To be valued pursuant to Order of 13 February 2025.
[20] Figure amended at hearing on 20 February 2025 after disclosure received.
[21] Figure amended at hearing on 20 February 2025 after disclosure received.
[22] Subject to Applicant disclosing Redbook valuation as per Orders of 13 February 2025.
LEGAL PRINCIPLES
I consider that the question of whether the Suburb C property is to be sold at this interim stage will be informed by the Court’s rulings on Ms Bergens’ application for maintenance. I will, therefore, deal with this issue first before turning to the orders sought for sale of the Suburb C property and litigation funding.
Maintenance
Ms Bergens seeks a payment by way of maintenance in the sum of $2,000 per week. Mr Vasco opposes any order for maintenance in her favour.
The sum of $2,000 per week is the exact amount required to be paid by Ms Bergens to the Suburb C property’s mortgage pursuant to the orders made by consent on 6 June 2024 and 23 August 2024 respectively.
The Court may make an order under section 90SE of the Act in maintenance proceedings only if the Court is satisfied of at least one of the criteria set out in section 90SB of the Act. For the reasons that follow, at this interim stage I am unable to make findings as to the length of the de facto relationship so as to satisfy section 90SB(a) of the Act and nor am I able to find that there is a child of the de facto relationship in order to satisfy section 90SB(b) of the Act. I do accept that there is arguable evidence to satisfy sections 90SB(c)(i) and (ii) of the Act. Senior counsel for Mr Vasco conceded in her submissions that her client conceded that section 90SB is satisfied.
Section 90SE(1) of the Act provides that the Court may make an order that it considers proper for the provision of maintenance.
Section 90SF of the Act sets out several criteria that the Court must consider in considering whether a party to a de facto relationship must maintain the other party to the de facto relationship. The Court is directed to specifically disregard any entitlement by a party whose maintenance is under consideration, to an income tested pension, allowance or benefit.[23]
[23] Family Law Act 1975 (Cth) s 90SF(4).
Ms Bergens bears the evidentiary burden as set out in section 140 of the Evidence Act 1995 (Cth).
The appropriate process to follow in considering an application for maintenance is a four-step process namely:
(1)To what extent can the applicant support him/herself?
(2)What are the applicant’s reasonable needs?
(3)What capacity does the respondent have to meet an order?
(4)If steps one to three favour the applicant, what order is reasonable having regard to section 75(2) of the Act?[24]
[24] Saxena & Saxena [2006] FamCA 588; Bevan & Bevan (1995) FLC 92-600.
The High Court in Hall & Hall (2016) FLC 93-709 at [8] considered the process for making an interim order for maintenance from the process for the making of an urgent order:
4.Unlike a court exercising the power to make an urgent order conferred by s 77, a court exercising the power to make an interim order under s 74(1) must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant. No doubt, on an application for an interim order "[t]he evidence need not be so extensive and the findings not so precise" as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth). A court determining an application for an interim order under s 74(1) cannot make such an order without finding, on the balance of probabilities on the evidence before it, that the threshold requirement in s 72(1) is met having regard to any relevant matter referred to in s 75(2).
(Footnotes omitted)
The determination of an interim maintenance application involves only an impressionistic evaluation of the available evidence.[25]
[25] Raymond & Raymond [2024] FedCFamC1A 45.
The Court is not required to conduct an audit of the parties’ expenses nor require extensive proof of every expense. Such applications are to be dealt with in a summary manner.[26]
[26] Qin & Donato [2023] FedCFamC1A 223.
The question as to whether Ms Bergens can support herself adequately is not to be determined upon a subsistence level but upon consideration of whether Ms Bergens can support herself adequately importing a standard of living reasonable in the circumstances.[27]
[27] M & M [2006] FamCA 868.
It is not necessary for Ms Bergens to use up all her assets and capital to satisfy the requirements that she is unable to support herself adequately.[28]
[28] Brown & Brown [2007] FamCA 151.
In considering the application by Ms Bergens for maintenance, I am satisfied that Mr Vasco has the financial means to make any order for maintenance ordered by the Court. The question to my mind is whether on the facts of this case, he should be ordered to do so.
Ms Bergens has deliberately elected at this stage of the proceedings not to seek any declaration that Mr Vasco is a parent to her child. It is not in dispute that the child was born using donor sperm and Ms Bergens’ ovum, nor that Ms Bergens conceived the child post-separation even taking the evidence as to the separation date at its highest.
At the time, Ms Bergens determined to proceed with the IVF treatment, she was a well remunerated professional working at a high level. I am unable to make a finding on the evidence as to whether Ms Bergens considered that her employment was at risk in 2024 when she fell pregnant. A month later, Ms Bergens was aware that she would be made redundant in mid-2024 when she filed an affidavit deposing to this (at paragraph 54), together with the need for $16,000 per month in maintenance so that she could meet her share of the mortgage repayments for the Suburb C property.[29]
[29] The order for urgent spousal maintenance was pleaded pursuant to section 77 of the Act and not section 90SG of the Act which applies to de facto couples.
The application for urgent maintenance was not pursued by Ms Bergens. On 6 June 2024, all interim applications were dismissed by consent after Mr Vasco paid to Ms Bergens the sum of $50,000 by way of interim property settlement.
As I observed during the hearing, Ms Bergens has received since mid-2024 the sum of approximately $247,000 tax free. As of 23 January 2025, Ms Bergens conceded in her oral evidence that she had the sum of $78,707 in her GG Bank account. Ms Bergens explains the depletion of funds since mid-2024 as a combination of general living expenses, the payment of legal fees in the sum of $71,438,[30] and for the payment of Ms Bergens half share of the mortgage for the Suburb C property. Ms Bergens predicted that by the end of February 2025, she expected to have the sum of $25,000 remaining.[31]
[30] See the rule 12.06 Costs Notice of Ms Bergens filed 20 February 2025.
[31] See the Affidavit of Ms Bergens filed 24 January 2025 at paragraph 12.
Ms Bergens conceded in her oral evidence that she could return to reside in the Suburb KK property which has a smaller mortgage repayment of $700 per week. The Suburb KK property is currently rented on a holiday platform until the end of April 2025. Ms Bergens agreed that she could utilise childcare if she obtained employment. At present, Ms Bergens wishes to remain at home being a stay-at-home mother for the child HH. Ms Bergens has made no enquiries about employment but gave evidence that she is maintaining professional networks. Whilst Ms Bergens gave evidence of her child being referred to a speech pathologist and of her own need to receive treatment from a specialist, there is no evidence before the Court that these medical issues are of a nature or of such severity to prevent Ms Bergens from looking for employment. Ms Bergens conceded in her oral evidence that she could work subject to any change in her medical care in the future.
It is Ms Bergens’ preference to remain at home caring for her child for at least 12 to 18 months.[32] It is hard to see how this can be achieved whilst Ms Bergens is required to pay $2,000 per week in mortgage repayments pursuant to Court order.[33] It can only be achieved if Mr Vasco is ordered to pay maintenance in that exact amount pending the parties’ resolution of these proceedings. It is arguable that in the intervening period Ms Bergens’ financial situation will deteriorate further given the expenses that she is required to pay to occupy the Suburb C property will continue to deplete her personal savings.
[32] See the Affidavit of Ms Bergens filed 24 January 2025 at paragraph 3.
[33] Ms Bergens consented to an order that she pay half of the mortgage payments on 6 June 2024. By this date she was pregnant and had received advice from her employer that her employment would cease in mid-2024.
The parties in this case had a short relationship. Arguably a form of ‘property settlement’ occurred in December 2021 for the first tranche of their relationship. Mr Vasco has not yet articulated an estoppel argument for the first period of their relationship given that he paid money to Ms Bergens pursuant to the Deed. This may still come at some later point in the litigation.
The parties are relatively young. Ms Bergens is highly qualified and agreed in evidence that she could look for part-time work which would enable her to earn an income and care for her child. Mr Vasco runs a profitable business. There is no dispute that there is currently a disparity in the parties’ lifestyles. This was inevitable after Ms Bergens elected to become a solo stay at home parent. No reasonable person could quibble with Ms Bergens’ personal choice to become a parent without Mr Vasco’s support. Choices have consequences and, in this case, it would be astounding that Ms Bergens had not considered the impact of her choice on her financial future. Ms Bergens has not re-partnered. Nor has Ms Bergens sought child support from Mr Vasco.
On the facts of this case, I am not persuaded that it is proper for the Court to make an order for the payment of maintenance by Mr Vasco to Ms Bergens as there is no legal basis for him to do so. I propose to dismiss the application.
Sale of the Suburb C Property
It follows from my ruling on maintenance that Ms Bergens is not able to repay her share of the mortgage repayments pursuant to the order that she consented to after being made redundant.
I accept the submission of Mr Vasco’s senior counsel that the mortgage repayments of $16,000 per month were only affordable at a point in time when both parties were in highly paid jobs and before Ms Bergens elected to become a sole parent to the child HH.
The financial landscape for Ms Bergens looks very different now.
I propose to make orders for the immediate sale of the Suburb C property by the agent preferred by Ms Bergens and not opposed by Mr Vasco. Mr Vasco did not oppose Ms Bergens remaining in occupation of the Suburb C property pending sale and accordingly I will not make an order for her to vacate prior to the property being placed on the open market.
I accept the submissions of Mr Vasco’s senior counsel that the Court should structure the orders as much as is possible to avoid further arguments and further applications.
Given Mr Vasco’s superior financial position, I propose to make an order that he meet the costs at first instance of any necessary repairs or improvements that are recommended by the appointed selling agent. Ms Bergens can reimburse her half share at final resolution of these proceedings. The funds which are to be made available to Ms Bergens from the net proceeds of sale pursuant to the orders made herein are for litigation costs and disbursements. It would, therefore, be inappropriate for an order to be made ordering Ms Bergens to reimburse Mr Vasco from this sum.
The chattels at the Suburb C property should be valued within the next 30 days and before the property goes on the open market for sale.
If not from his own income, Mr Vasco is of course able to call back monies he paid to his girlfriend, Ms X, after these proceedings commenced. I should record for the purposes of these Reasons that I reject Mr Vasco’s evidence wherein he stated that he paid the money to Ms X to make her feel “safe.”
Partial Property Orders
Ms Bergens seeks an order for “partial settlement” in the sum of $135,000 if paid personally by Mr Vasco or $200,000 if from the net proceeds of sale or in the alternative an interim provision of litigation expenses in her favour based on a ‘dollar for dollar’ order.
The application is opposed by Mr Vasco although he did not oppose the release of the sum of $50,000 to Ms Bergens from the net proceeds of the Suburb C property’s sale.
The order framed by Ms Bergens as being an order for “partial property settlement” is for the funding of litigation expenses.[34]
[34] See the List of Authorities provided on behalf of Ms Bergens under the heading “Legislation”.
If an interim order is to be made, it is the source of power that determines the necessary preconditions and relevant considerations for making the order.[35]
[35] Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578; Zschokke & Zschokke (1996) FLC 92-693; Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466.
In making an interim order pursuant to section 117 of the Act, the Court must assess the amount sought as being reasonable. The Court must make such order as it considers just provided that there are justifying circumstances having regard to section 117(2A) of the Act.[36]
[36] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466.
Uncertainty about the expected range of property distribution is not necessarily fatal to an application for interim costs. It is only one factor to consider in the exercise of the discretion.[37]
[37] Zschokke & Zschokke (1996) FLC 92-693; Bennison & Bennison [2013] FamCA 11.
In considering an application brought pursuant to section 117 of the Act, the Court should assess the amount that is required.[38]
[38] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466, [153].
In considering the application by Ms Bergens for litigation funding in the specific sum of $135,000 or by way of a ‘dollar for dollar’ order, I decline to make the orders sought by her.
To date, Ms Bergens has paid the sum of $61,438 in actual costs. The evidence is that she has paid her legal fees using a credit card which attracts “Qantas points” and “from interim settlement received from [Mr Vasco].”[39]
[39] See the rule 12.06 Costs Notice dated 20 February 2025 from Angela Ferdinandy, solicitor, filed on behalf of Ms Bergens.
As of 20 February 2025, Ms Bergens’ Costs Notice confirms that she had no fees outstanding to her solicitor.
The Costs Notice dated 20 February 2025 contains a new paragraph which was not recorded in the Costs Notice dated 12 February 2025 which states:
We confirm that in accordance with clause 18 of our Cost Agreement, we shall require you to pay $135,000 into our trust account on account of future legal fees and are not willing to continue to represent you in the absence of that security.
It is not an ‘essential precondition’ that the applicant’s legal representatives will not continue to act unless the costs are paid or secured on an ongoing basis.[40]
[40] Columb and Columb (unreported, Family Court of Australia, Fogarty J, 27 November 1987); Coomes& Coomes (1995) FLC 92-558.
Both Costs Notices dated 12 and 20 February 2025 respectively state that the total cost, including the Trial, is estimated to be more than $150,000.
In considering what order is just in the circumstances of this case, the Court is not assisted by an amount that would cover Ms Bergens’ legal costs and disbursements up and until the participation of the parties in a further mediation or a Conciliation Conference. I acknowledge that the parties have already attended a private external mediation. That mediation clearly took place at a point in time when the parties had no settled balance sheet because valuations of various assets are yet to be obtained.
In my view, the parties should be focused on attempting to resolve this matter at a mediation or Conciliation Conference rather than seeking funds that will see them through to Trial. I assess that given the opportunity, the payment of the amount sought of $135,000 or $200,000 would as a license to squabble over discovery, subpoenas and all manner of pre-Trial issues if given the opportunity to do so. In my view, a payment in the realm of the amounts sought by Ms Bergens will only add fuel to the pyre of disputes currently before the Court.
The making of a ‘dollar for dollar’ order under section 117(2) is a discretionary order that is usually made only as an order of last resort. I do not consider that such an order is warranted on the facts of this case.
On the evidence available, I assess that the sum of $60,000 by way of litigation funding is just in all the circumstances and with such sum to be paid to Ms Bergens upon the sale of the Suburb C property.
I am satisfied on the available evidence that Mr Vasco has the financial means to pay for the costs of valuations at first instance. I decline to await the sale of the Suburb C property so that the net proceeds of sale are utilised to meet valuation costs on behalf of the parties. If there are delays in the sale of the Suburb C property or a long settlement period, then this litigation cannot progress until sufficient funds are released to meet those costs.
I, therefore, propose to make an order that Mr Vasco meet the cost at first instance of any expert reports or valuations as ordered herein and with Ms Bergens half share of such costs to be reimbursed to him upon the sale of the Suburb C property from the funds ordered to be paid to her by way of litigation funding.
I decline to vary Orders 6 and 9 of the orders made by consent on 6 June 2024. There is no application before me to do so and reimbursement of those costs to Mr Vasco will await finalisation of the proceedings as the parties had agreed by Court order.
There were no submissions on the issue of disclosure nor some of the ancillary orders sought such as the storing of chattels and the repair of a door at the Suburb C property. The parties have ongoing obligations to provide disclosure to each other and to the Court.[41] I decline to make orders as sought which were not the subject of evidence or submissions at the hearing.
[41] Pirani & Pirani (No 3) [2023] FedCFamC1F 561.
I decline to transfer the proceedings to Division 1 of this Honourable Court as sought orally by Ms Bergens. No proper basis was articulated by counsel for Ms Bergens for the transfer. I accept that a transfer may be appropriate at a later point in time dependent on the final orders sought by each of the parties if they are unable to reach agreement at further dispute resolution.
In opposing a further order for mediation, it was submitted by counsel that the parties will arrange an informal settlement conference at some point in time to discuss settlement options. Parties are free to resolve the proceedings at any time of their choosing. In this matter, however, I am firmly of the view that the parties would benefit from a Conciliation Conference to be conducted by a Judicial Registrar of this Court to assist in the settlement negotiations.
Senior counsel for Mr Vasco urged the Court to make a finding that her client is not a parent to the child HH, born in 2024. Counsel for Ms Bergens opposed any finding at this interim stage. Counsel for Ms Bergens was at pains to emphasise in her submissions that her client did not seek a finding as to parentage despite such a finding potentially being helpful to her client’s claim for maintenance and/or property settlement.
Neither party had sought orders for a declaration as to parentage in their respective applications before the Court. Had they done so, it is likely that the Court would have listed such application for Trial as a threshold issue to be determined before proceeding forward with the parties competing financial applications given its significance.
In the absence of any application for a declaration as to parentage, I decline to make any such order.
At the conclusion of final submissions, counsel for Ms Bergens contended that her client may seek to bring an application for declaration as to parentage later in these proceedings. Senior counsel is right to complain that Ms Bergens has in effect left this issue hanging like a ‘sword of Damocles’ over the head of Mr Vasco.
There may be many and varied reasons why Ms Bergens has elected not to bring the application before now. Ms Bergens was not cross-examined on this topic and the Court is unable to make a finding as to the reasons.
If the matter does not settle at the Conciliation Conference, I consider that Ms Bergens will need to bring this issue to a head sooner rather than later by way of a formal application. The Court may need to consider making an order for Ms Bergens to ‘nail her colours to the mast’ on this issue given the potential it has to derail the proceedings if filed close to Trial.
I do not consider appropriate on the facts of this case and in the absence of any formal application, for the Court to make any finding as to parentage that has far reaching consequences not only for the parties but also for the child HH.
CONCLUSION
For all of the above Reasons, the Court makes the orders set out at the commencement of this Judgment.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 13 March 2025
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