Bulow & Bulow (No 4)

Case [2021] FCCA 1175

FEDERAL CIRCUIT COURT OF AUSTRALIA

Bulow & Bulow (No 4) [2021] FCCA 1175

File number(s): ADC 1674 of 2014
Judgment of: JUDGE BROWN
Date of judgment: 1 June 2021
Catchwords: FAMILY LAW – property settlement – superannuation – application for a stay of proceedings – long marriage – superannuation held in different forms – contributions made during the marriage – financial and non-financial contributions – splitting order under s 90XT of the Family Law Act 1975 (Cth) – equalisation of superannuation – just and equitable outcome
Legislation:

Family Law Act 1975 (Cth) Pt VIIIB, ss 75, 75(2), 79, 79(4), 90XT(2), 90XT(4)

Family Law (Superannuation) Regulations 2001 (Cth)
Cases cited:

Bulow & Bulow [2017] FCCA 2657

Bulow & Bulow [2019] FamCAFC 3

Bulow & Bulow [2020] FamCAFC 120

Bulow & Bulow (No 3) [2021] FCCA 314

Jackson & Balen [2009] FamCAFC 131
Number of paragraphs: 143
Date of hearing: 14 May 2021
Place: Adelaide
Counsel for the Applicant: The Applicant in person
Counsel for the Respondent: The Respondent in person

ORDERS

ADC 1674 of 2014
BETWEEN:

MS BULOW

Applicant
AND:

MR BULOW

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

1 JUNE 2021

THE COURT ORDERS THAT:

1.The application for a stay is refused and the earlier interim stay order is dismissed.

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 under the pseudonym Bulow & Bulow (No 4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE BROWN:

INTRODUCTION

  1. These reasons for judgment relate to an application for a stay of orders relating to matrimonial property proceedings, following a final hearing.  The applicant for the stay, Mr Bulow “the husband” has filed an appeal to the Full Court of the Family Court.  The respondent to the appeal, Ms Bulow “the wife” opposes the granting of the stay.

  2. The history of the litigation between the parties is complex to say the least.  It involves two other appeals, besides the current one and numerous other applications.  The proceedings have been on foot since 14 May 2014.  There have been two final hearings in the Federal Circuit Court, each conducted by Judge Heffernan, who is no longer a member of the Court, which has resulted in the current application being listed before me.

  3. In the first trial, Judge Heffernan found the parties had assets with a net worth of $465,321.00, the chief component of which was the proceeds of sale of the parties’ former family home amounting to $268,138.00.

  4. The main focus in that trial and indeed in the second trial was on the parties’ respective superannuation interest, particularly given that the parties had interests in distinct types of superannuation funds. 

  5. The husband, until recently was a public servant, employed by the Australian Government. As a consequence, he was and remains a member…

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Details
AGLC
Bulow and Bulow (No 4) [2021] FCCA 1175
Case
[2021] FCCA 1175
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a stay of proceedings before Brown J in the Federal Circuit Court of Australia. The applicant, Ms Bulow, sought the stay, while Mr Bulow was the respondent. The proceedings related to a long-standing family law dispute concerning the division of superannuation and other assets following the parties' separation in 2012.

The primary legal issue before the Court was whether to grant an application for a stay of proceedings. This application was made in the context of an ongoing appeal and a history of protracted litigation, which had commenced in May 2014. The Court was also implicitly required to consider the principles governing the grant of stays in family law matters, particularly where there is a history of delay and further appeals.

Brown J refused the application for a stay and dismissed the earlier interim stay order. The Court noted the significant delay in finalising the proceedings, which had been ongoing for over seven years and involved multiple trials and directions. While not explicitly detailed in the provided text, the refusal of the stay suggests the Court found insufficient grounds to halt the proceedings, likely considering the prejudice to the parties and the public interest in the finalisation of litigation. The Court also referenced section 121 of the *Family Law Act 1975* (Cth) concerning the publication of proceedings, indicating a broader awareness of the sensitivities and legal constraints within family law litigation.

Orders

Orders of the court

ADC 1674 of 2014

BETWEEN:

MS BULOW

Applicant

AND:

MR BULOW

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

1 JUNE 2021

THE COURT ORDERS THAT:

1. The application for a stay is refused and the earlier interim stay order is dismissed.

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

However, such methodology does not, of itself, resolve other evidentiary controversies potentially arising between spouses about how the Court should apportion superannuation upon marital breakdown.BACKGROUND The husband was born in Country H in 1962. He migrated to Australia in 1991. By training he is an engineer. He commenced working for the Australian Government in 1994. The wife was born in 1965. The parties married in 1993. They are the parents of four children, now all adult, born between 1994 and 1998. The parties separated in November of 2012 and were divorced in October 2014. The wife commenced proceedings, in the Federal Circuit Court of Australia, at the Adelaide Registry, on 14 May 2014, now over seven years ago. It must cause any dispassionate observer concern that the litigation remains un-finalised, notwithstanding the time which has elapsed. It is also concerning that there is a further appeal in progress. The case was first listed for trial in, mid-June of 2016, by way of an order made on 1 September 2015. The case was listed before Judge Mead (as Her Honour then was). The case was not reached and was transferred to Judge Heffernan, who ultimately made directions that it proceed to final hearing in late November of 2016. Judgement was delivered on 21 November 2017, approximately a year later.THE FIRST TRIAL Judge Heffernan found that each of the parties had been employed, in the paid workforce, during their marriage, apart from the times the wife had been engaged in home duties and parenting. He was in a position to tabulate each of the parties’ income between 1994 and 2012. This enabled a finding that the wife’s direct financial contributions had ‘reduced with the arrival of the children and began to significantly increase with her return to full time work in early 2004’.[1][1] Bulow & Bulow (No 1) [2017] FCCA 2657 [60] (Heffernan J). In purely arithmetic terms, the husband had earned around 30% more than the wife. However, Judge Heffernan found that the wife’s contributions, as a parent and homemaker, were more significant than those of the husband. Judge Heffernan also found that the wife had brought a greater amount of capital, into the parties’ marriage at its outset. It was also found that the wife had had greater superannuation in 1994 but the husband had been able to contribute more, to his fund, as a consequence of his more consistent work record and, at times, greater salary. Other controversies arose between the parties in respect of improvements undertaken to their home during their marriage and issues relating to fees incurred, for each of them, in respect of university courses undertaken to improve professional qualifications. The parties also disagreed about issues relating to their post separation contributions, particularly child support and mortgage payments relating to their former home at B Street, Suburb C, which was occupied post separation by the husband, until its sale, in June of 2015. The husband largely acted on his own behalf during the proceedings. The wife was critical of him for not being frank to either her or the Court regarding his financial position. She also brought an application to sell the B Street, Suburb C property, which could not be agreed.

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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