FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hyde & Bergsma [2025] FedCFamC2F 270
File number(s): PAC 4655 of 2022 Judgment of: JUDGE OBRADOVIC Date of judgment: 3 March 2025 Catchwords: FAMILY LAW – DE-FACTO RELATIONSHIP – INTERIM MAINTENANCE – Whether applicant can adequately support herself – Capacity to meet an order for maintenance Legislation: Family Law Act 1975 (Cth) ss 90SE, 90SM, 90SS Cases cited: Bain v Bain (2017) 319 FLR 119
Brown & Brown [2007] FamCA 151
Collingridge & Aiolfi [2019] FamCAFC 88
Hanas & Jolaha (No. 4) [2019] FamCA 483
Maroney & Maroney [2009] FamCAFC 45
Saxena and Saxena [2006] FamCA 588; (2006) FLC 93-268
Division: Division 2 Family Law Number of paragraphs: 92 Date of hearing: 24 February 2025 Place: Parramatta Counsel for the Applicant: Mr Fowler Solicitor for the Applicant: Hikma Legal Counsel for the Respondent: Mr Fermanis Solicitor for the Respondent: Giles Payne & Co Appearing for the Independent Children's Lawyer: Submitting ORDERS
PAC 4655 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HYDE
Applicant
AND: MR BERGSMA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
3 MARCH 2025
THE COURT ORDERS THAT:
1.Pending further order and pursuant to s 90SE of the Family Law Act 1975 (Cth), the respondent pay to the applicant by way of periodic spousal maintenance the sum of $1270 per week, payable by way of electronic funds transfer each Wednesday, commencing 5 March 2025.
2.If the respondent is in default of Order 1 herein or Order 1 of the orders of 24 February 2025, the respondent is to, within 90 days of the date of this order, do all acts and things and sign all documents required to list for sale and thereafter to sell the property at 1 C Street, Suburb D (‘the property’) in accordance with the following conditions:
(a)The respondent shall keep the applicant informed at all times of all matters relating to the listing, marketing, and attempted sale of the property and shall direct the real estate agent and the solicitor or conveyancer and, if any, the auctioneer, to provide to the applicant all relevant information about the property and its sale.
(b)The respondent shall list the property for sale with a licensed real estate agent as agreed by the applicant and the respondent and in default of agreement within 35 days from the date of
these ordersdefault the applicant shall nominate three real estate agents, and the respondent shall select one of those agents who will be the agent engaged to sell the property. If the respondent fails to select an agent from the applicant’s list within 7 days of that list being sent to him or his solicitor, then the applicant may select the agent.(c)That the parties jointly instruct a solicitor to act on the sale of the property and in default of agreement as to the solicitor to be engaged within 35 days from the date of
these orders
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CaseChat Overview and Summary
The court considered the relevant factors under section 90SB of the Family Law Act 1975, including the length of the relationship, the applicant's capacity to meet her own needs, and the contributions made by each party during the relationship. The court found that the applicant had demonstrated a need for ongoing financial support and assessed her ability to meet her own needs as limited due to her age, health, and employment prospects. The court also took into account the substantial financial resources of the respondent, which included a property at 1 C Street, Suburb D.
In determining the appropriate amount of maintenance, the court considered the respondent's income, the applicant's needs, and the financial circumstances of both parties. The court concluded that the respondent should contribute to the applicant's support and ordered him to pay $1270 per week in periodic spousal maintenance. Additionally, the court outlined detailed conditions for the sale of the property to secure the applicant's entitlement to maintenance and lump sum payments. The sale proceeds were to be prioritised to pay legal costs, discharge the mortgage, and make payments to the applicant before any remaining balance was held in trust.
The court's decision emphasised the importance of ensuring the applicant's financial stability and the need for the respondent to contribute adequately to her support during the pendency of the proceedings. The detailed orders regarding the sale of the property aimed to secure the applicant's entitlement to maintenance and provide a structured approach to the distribution of the sale proceeds.
Orders
Orders of the court
PAC 4655 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS HYDE
Applicant
AND:
MR BERGSMA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
3 MARCH 2025
THE COURT ORDERS THAT:
1. Pending further order and pursuant to s 90SE of the Family Law Act 1975 (Cth), the respondent pay to the applicant by way of periodic spousal maintenance the sum of $1270 per week, payable by way of electronic funds transfer each Wednesday, commencing 5 March 2025.
2. If the respondent is in default of Order 1 herein or Order 1 of the orders of 24 February 2025, the respondent is to, within 90 days of the date of this order, do all acts and things and sign all documents required to list for sale and thereafter to sell the property at 1 C Street, Suburb D (‘the property’) in accordance with the following conditions:
(a) The respondent shall keep the applicant informed at all times of all matters relating to the listing, marketing, and attempted sale of the property and shall direct the real estate agent and the solicitor or conveyancer and, if any, the auctioneer, to provide to the applicant all relevant information about the property and its sale.
(b) The respondent shall list the property for sale with a licensed real estate agent as agreed by the applicant and the respondent and in default of agreement within 35 days from the date of these orders default the applicant shall nominate three real estate agents, and the respondent shall select one of those agents who will be the agent engaged to sell the property. If the respondent fails to select an agent from the applicant’s list within 7 days of that list being sent to him or his solicitor, then the applicant may select the agent.
(c) That the parties jointly instruct a solicitor to act on the sale of the property and in default of agreement as to the solicitor to be engaged within 35 days from the date of these orders default the applicant shall nominate three solicitors, and the respondent shall select one of those solicitors who will be the solicitor engaged to act for the vendor on the sale of the property. If the respondent fails to select a solicitor from the applicant’s list within 7 days of that list being sent to him or his solicitor, then the applicant may select the solicitor.
(d) That the parties list the property at a price agreed on by them and failing agreement at such price determined to be the then fair market value of the property by E Company and the costs of such valuation shall be paid by the respondent.
(e) If Contract for Sale of the property by private treaty have not been exchanged within 1 month from the date the property was placed on the market for sale then the parties will cause the property to be listed for sale by way of public auction on a date determined by the agent.
(f) If listed for sale by way of public auction, a reserve price shall be fixed by agreement between the parties and failing agreement the reserve price will be determined by E Company and the costs of such valuation shall be paid by the respondent.
(g) If the property is not sold at the auction, or by private negotiation within 14 days after the auction, then the parties shall do all acts and things and sign all documents as may be required to offer the property for sale by private treaty and, at the request of either party, shall offer the property for sale by further public auction, upon the terms set out above save as to the reserve price of the property which, in default of agreement between the parties, shall be 5% below the reserve price at the prior auction, on such further date as may be recommended by the agent.
(h) If the property is not sold at the second auction, or by private negotiation within 14 days after the second auction, then the parties shall continue to comply with the previous subparagraph until the property is sold.
(i) That upon the sale of the property the parties shall do all acts and things necessary to cause the proceeds of the sale to be paid and distributed in the following manner and priority:
(i) Payment of the legal costs, real estate agent’s commission and expenses (including advertising expenses), and auction costs in relation to the sale;
(ii) Rate adjustments as between the vendor and purchaser;
(iii) Discharge of the mortgage secured against the property;
(iv) Payment to the applicant in the amount of $66,040 by way of lump sum maintenance less any amount of weekly maintenance paid to date;
(v) Payment to the applicant in the amount of $100,000 in satisfaction of Order 1 of 24 February 2025; and
(vi) Payment of the balance into a trust account to be held by the applicant’s solicitors pending court order or written agreement of the parties as to its distribution.
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.
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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