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

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

Relationship Details

• Type: Marriage
• Duration: The couple began cohabitation in 2005 and separated on 30 June 2019. They were married in 2008 and divorced on 14 February 2021, making the duration approximately 14 years.
• Ages at Judgment: The Wife is 41 years old, and the Husband is 43 years old.

Children

• Children from the Relationship: Two children, ages 12 and 10.
• Care Arrangements: The children live in an equal shared care arrangement.

Initial Financial Positions

• Husband:

  • Purchased the AF property in 2003 for $130,000 and sold it for $250,000 in 2009. It was funded 80% by mortgage borrowings.
  • Initial property increases alleged but disputed.
  • Savings or available money of $26,000 used when purchasing the AF property.

• Wife:

  • Purchased L Street, Town M property in 2004 for $300,000 with 90% mortgage assistance. Resided there post-separation.
  • Savings or available money of $30,000 at property purchase.
  • Disputed initial value increases compared to the Husband's property.

Contributions During the Relationship

• Financial Contributions:

  • The Wife purchased another property (AH property) for $138,000 in 2007 using borrowings.
  • Husband sold AF property in 2009; proceeds reduced mortgage on the AG property.
  • The Wife worked in a firm from about 2009, and in 2016, through the family trust, paid $700,000 (about $680,000 borrowed) for a half share of a larger practice, which substantially increased her income.
  • The parties also set up a self-managed superannuation fund, built the J Street home with the Husband's work, and in 2019 bought a rural property with cattle.

• Non-financial Contributions:

  • Both involved in parenting and homemaking, but disputed significance of each other's contributions.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The Wife sold her interest in the firm and is being paid part of the price over several years.
  • The husband continued residing at J Street, Town K and working in his own business.

• Dissipation of Assets: Allegations of unilateral financial decisions concerning firm and taxation liabilities by the Wife.

• Primary Caregiver Arrangements: Agreed equal shared care of children post-separation.

Current Financial Position & Property Pool

• Husband:

  • Residence at the J Street, Town K property.
  • Involved in self-employment and construction work.

• Wife:

  • Residence at L Street, Town M property.
  • Superannuation nuances addressed separately.

• Total Asset Pool: Around $1,770,836 excluding AH property shortfall.

• Real Estate:

  • J Street Property and L Street Property with specific financial obligations.

• Businesses and Investments:

  • Several companies, to be wound up and divided as agreed.
  • Interests such as the family trust apportioned between the parties by agreement.

Assessment of Contributions and Future Needs

• Contributions:

  • Determined to be equal (50/50) in non-superannuation assets after considering initial contributions and roles.
  • Superannuation ($304,580) also found to be contributed to equally, with no s 75(2) adjustment; it is divided equally.

• Future Needs Adjustments:

  • A 1% adjustment to the Husband under s 75(2)(b) and (o), creating a 2% disparity (51/49) in the non-superannuation assets, because the Wife had paid about $143,762 in legal fees (against the Husband's $41,808) from a business built up during the relationship. The court did not add the fees back to the pool.
  • The court refused the Husband's request for a 5% to 7.5% adjustment for the Wife's greater earning capacity: her income is currently lower than his, she has a baby from a new relationship, and s 75(2) is not meant to equalise incomes over the very long run.

• Final Division: 51% to the Husband and 49% to the Wife of the non-superannuation assets. The Husband keeps the J Street property and pays the Wife about $162,000; rise-and-fall provisions deal with uncertain tax and sale amounts.

Unique Aspects

• Equitable Considerations:

  • The disparity in legal fees paid was dealt with by a small s 75(2) adjustment rather than an add-back.
  • The handling of late disclosure regarding the Wife's firm sale profits and unit holder profit entitlements highlighted in negotiations.

• Complex Financial History:

  • The dissolution of business interests (several companies) and trust concerns played significant roles.
  • Rise-and-fall provisions handle a possible remission of tax interest charges and other variable amounts.

Later decision

In Bergman & Bergman (No 3) [2023] FedCFamC2F 198 (24 February 2023) the same judge dismissed the wife's application for costs. The property orders were not changed.

The law since this decision

This case was decided before 10 June 2025. From that date the Family Law Act 1975 (Cth) sets out the steps for a property settlement in s 79(3) to (5), and the court must consider the effect of family violence on each party's contributions (s 79(4)(ca)) and on their current and future circumstances (s 79(5)(a)), and any material wastage of property (s 79(5)(d)). In Western Australia, a property case between married couples is decided under that Act in the Family Court of Western Australia. A case between de facto partners in Western Australia is decided under the Family Court Act 1997 (WA), which has not adopted those 2025 changes.