Bergman & Bergman (No 2) - [2022] FedCFamC2F 1652

Federal Circuit and Family Court of Australia
(DIVISION 2)
Bergman & Bergman (No 2) [2022] FedCFamC2F 1652

File number: BRC 220 of 2020

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 7 October 2022

Catchwords: FAMILY LAW – final orders – property application – disparate contributions over many years – each parent regarded his or her parenting contribution as more significant – finding of overall equality of contribution – funds applied to legal fees adjusted pursuant to sections 75(2)(a) and (o).

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 75, 79, 81

Taxation Administration Act 1953 (Cth) s 8AAG

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.06

Cases cited:
Bergman & Bergman [2022] FedCFamC2F 1313

NHC & RCH (2004) FLC 93-204

Elias v Commissioner of Taxation [2002] FCA 1132.

Fields & Smith (2015) FLC 93-638

Hickey and Hickey and the Attorney-General [2003] FamCA 395; (2003) FLC 93-143

Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932

Stanford v Stanford [2012] HCA 52; (2012) FLC 93-518

Trevi & Trevi (2018) FLC 93-858

Division: Division 2 Family Law

Number of paragraphs: 156

Date of hearing: 25-26 May 2022, 29 September 2022

Counsel for the Applicant: Mr M Drysdale KC

Solicitor for the Applicant: Condon Charles Lawyers

Counsel for the Respondent: Mr J Linklater-Steele

Solicitor for the Respondent: Wilsons The Family Lawyers
ORDERS

BRC 220 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BERGMAN

Applicant

AND:
MR BERGMAN

Respondent

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

7 OCTOBER 2022

THE COURT ORDERS THAT:
1.These Orders are made by way of alteration of property interests pursuant to Section 79 of the Family Law Act 1975 (Cth) (“the Act”).

J Street, Town K
2.That within ninety (90) days of the date of settlement of the sale of the N Street, Town O Property (as defined herein), the Applicant Wife (“the Wife”), and Respondent Husband (“the Husband”), do all acts necessary to transfer to the Husband, at the expense of the Husband, the whole of the Wife’s right, title and interest in the property located at J Street, Town K, more particularly described as Lot … on Registered Plan …, Title Reference … hereinafter referred to as "the J Street, Town K Property".
3.That unless otherwise provided for in these Orders, within ninety (90) days of the date of settlement of the sale of the Town K Property, and contemporaneously with the J Street, Town K transfer:
(a)the Husband do all acts and things necessary for the Husband to refinance the following loans secured over the J Street, Town K by the Commonwealth Bank of Australia into his sole name and effect a full discharge of the Wife’s liability:
(i)Home Loan Account Number …01; and
(ii)Home Loan Account Number …01;

collectively described as the “J Street, Town K refinance”; and
(b)the Husband to pay to the Wife as directed by the Wife, or the…

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 Bergman & Bergman (No 2)

Details

AGLC: Bergman & Bergman (No 2) [2022] FedCFamC2F 1652
Case: [2022] FedCFamC2F 1652
Decision Date

CaseChat Overview and Summary

The matter of Bergman & Bergman (No 2) involved a property settlement dispute between the parties following the breakdown of their relationship and marriage. The Federal Circuit and Family Court of Australia (Division 2) was required to decide the legal issues concerning the division of the parties' property, including their real estate, businesses, and superannuation. The court considered the contributions of each party, both financial and non-financial, during the relationship and since separation. After examining the evidence and submissions, the court found that the parties had made equal contributions overall, both financially and non-financially, and that it was just and equitable to divide the non-superannuation property in the proportion of 51% to the Husband and 49% to the Wife. The court also made adjustments for legal fees and other factors, resulting in an overall division of approximately 51% to the Husband and 49% to the Wife. The final orders were released in draft form to allow the parties' solicitors to verify the details and arithmetic.

Orders