Birk & Farwell

Case [2021] FedCFamC2F 234


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

  1. In this case I must determine how the property of the parties, after a cohabitation…

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AGLC
Birk & Farwell [2021] FedCFamC2F 234
Case
[2021] FedCFamC2F 234
Decision Date

CaseChat Overview and Summary

This case involved a property settlement between Mr Birk, the applicant, and Ms Farwell, the respondent, following the termination of their de facto relationship. The primary dispute centred around the division of their respective superannuation funds and the value of certain assets. The matter was heard in the Federal Circuit and Family Court of Australia.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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