FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Birk & Farwell [2021] FedCFamC2F 234
File number: MLC 14486 of 2019 Judgment of: JUDGE O'SHANNESSY Date of judgment: 22 October 2021 Catchwords: FAMILY LAW – final property – de facto relationship - adjustment of de facto property – superannuation split – initial contributions – weight to be given to initial contributions – two pools approach – parties inexpert valuations not accepted. Legislation: Evidence Act 1995 (Cth), ss 76, 81, 144
Family Law Act 1975 (Cth), ss 75, 79, 90SM, 90SF, 90XO, 90XT
Family Law Rules 2004 (Cth), r 15.23
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 6.35
Federal Circuit Court Rules 2001 (Cth), r 15A.10
Cases cited: Benson v Drury (2020) 62 Fam LR 1
C & C (2005) FLC ¶93-220
NHC & RCH (2004) FLC ¶93-204
Fields & Smith (2015) FLC ¶93-638
Hickey and Hickey and the Attorney-General (2003) FLC ¶93-143
In the marriage of Money and Money (1994) FLC ¶92-485
Jabour & Jabour (2019) FLC ¶93-898
Keskin & Keskin and Anor (2019) FLC ¶93-932
Lovine & Connor and Anor (2012) FLC ¶93-515
Markoska & Markoska & Anor (Costs) [2011] FamCA 833
Norbis v Norbis (1986) FLC ¶91-712
Semperton v Semperton (2012) 47 Fam LR 626
Stanford v Stanford (2012) FLC ¶93-518
Pierce v Pierce (1999) FLC ¶92-844
Wallis & Manning (2017) FLC ¶93-759
Welch & Abney (2016) FLC ¶93-756
Division: Division 2 Family Law Number of paragraphs: 202 Date of hearing: 3-4 May 2021 Place: Melbourne Counsel for the Applicant: Mr A Robinson Solicitor for the Applicant: Lopes Family Law Counsel for the Respondent: Mr D Sweeney Solicitor for the Respondent: Westminster Lawyers Pty Ltd ORDERS
MLC 14486 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BIRK
Applicant
AND: MS FARWELL
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
22 OCTOBER 2021
THE COURT ORDERS THAT:
1.Within 14 days the parties are directed to bring in minutes of orders to give effect to these reasons.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Birk & Farwell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION
In this case I must determine how the property of the parties, after a cohabitation…
Continue reading Birk & Farwell
Sign in free to access the full text
- AGLC
- Birk & Farwell [2021] FedCFamC2F 234
- Case
- [2021] FedCFamC2F 234
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the appropriate weight to assign to the initial contributions made by each party to their superannuation funds. Another key issue was the valuation of the parties' respective assets, particularly in relation to the two pools approach, which distinguishes between property accumulated during the relationship and property brought into it. Additionally, the court had to consider whether to accept the parties' unexpert valuations of certain assets.
In delivering the judgment, Judge O'Shannessy first addressed the initial contributions to the superannuation funds. The court determined that while initial contributions are an important factor, they are not the sole determinant in the division of superannuation. The court considered the overall contributions made by both parties during the relationship and the period over which those contributions were made. The court found that the two pools approach was applicable, but it did not accept the parties' unexpert valuations as they did not adequately reflect the true value of the assets. Instead, the court relied on independent expert evidence to determine the appropriate division of the assets.
Ultimately, the court ordered that the parties' superannuation funds be split in a manner that reflected the contributions made by each party during the relationship, taking into account the two pools approach and the expert valuations provided. The court directed the parties to bring in minutes of orders within 14 days to give effect to these reasons.
Orders
Orders of the court
MLC 14486 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR BIRK
Applicant
AND:
MS FARWELL
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
22 OCTOBER 2021
THE COURT ORDERS THAT:
1. Within 14 days the parties are directed to bring in minutes of orders to give effect to these reasons.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.