FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BONDAR-TWERSKY & TWERSKY | [2009] FMCAfam 163 |
| FAMILY LAW – Property – very short marriage – wife emigrated from Ukraine to Australia – expectations of the marriage and allegations of domestic violence –whether adjustment be made due to wife’s social dislocation arising from her relocation to Australia – consideration of unpaid legal costs under s.75(2)(o) – non-disclosure of assets – assessment of contributions– just and equitable. |
| Family Law Act 1975, (Cth), Part VIII, ss.43(a), 75(2), (2)(o), 79(2), 79(4), Part XV, s.117 Family Law Rules 2004, Ch 13 |
| Barker v Barker (2007) 36 Fam LR 650 “Best Practice Guidelines for Lawyers Doing Family Law Work,” Attorney-General’s Department, (Canberra: 2004) |
| Applicant: | MS BONDAR-TWERSKY |
| Respondent: | MR TWERSKY |
| File Number: | CAC 2241 of 2007 |
| Judgment of: | Neville FM |
| Hearing dates: | 30 June, 1 July, 25 & 26 November 2008 |
| Date of Last Submission: | 26 November 2008 |
| Delivered at: | Canberra |
| Delivered on: | 4 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Farrar |
| Solicitors for the Applicant: | Farrar, Gesini & Dunn Family Lawyers |
| Counsel for the Respondent: | Ms Tonkin |
| Solicitors for the Respondent: | Hill and Rummery Barristers & Solicitors |
ORDERS
That within sixty (60) days of the date of these Orders, the Husband pay to the Wife the sum of $112,333, less any payments made by way of property settlement by the Husband to the Wife in accordance with Orders dated 1 July 2008.
That the Wife retain the whole of the proceeds of sale of the Ukraine property.
That contemporaneously with Order 1, the Wife is to transfer to the Husband any right, title and interest she has in real property and/or personal property in the possession and/or control of the Husband, including but not limited to:
(a)“Property W”, [L] in NSW;
(b)Property L, [L] in NSW;
(c)“Property M”, [L]; and
(d)“Property P”, [L].
That in the event that Order 1 is not complied with, and the “Property W” property has not already been sold, then the Husband is to do all things necessary to effect the sale of “Property W” by private treaty at the market…
Keep reading for free
Create a free CaseChat account to read Bondar-Twersky and Twersky and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2009] FMCAfam 163
- Decision Date
CaseChat Overview and Summary
The court addressed several key legal issues, including the conditions under which "Property W" should be sold, the method for determining its market value, and the allocation of sale proceeds. The court also had to consider the obligations of the husband and wife in executing necessary documents for the sale and the consequences of any failure to comply with these obligations. Furthermore, the court was required to rule on the distribution of other assets between the parties.
In its reasoning, the court ordered that "Property W" be sold by private treaty if possible, with specific timelines and conditions for sale. If the property was not sold within the stipulated timeframe, the court mandated a public auction. The court detailed the process for determining the market value of "Property W" and outlined the steps for the distribution of sale proceeds, including the payment of debts, costs, and the remaining balance to the husband. The court also specified that the Registrar of the Family Court could be appointed to execute necessary documents if either party failed to comply with the orders. Finally, the court addressed the distribution of other assets and provided for the possibility of a relisting for costs.
Orders
Orders of the court
1.
That within sixty (60) days of the date of these Orders, the Husband pay to the Wife the sum of $112,333, less any payments made by way of property settlement by the Husband to the Wife in accordance with Orders dated 1 July 2008.
2.
That the Wife retain the whole of the proceeds of sale of the Ukraine property.
3.
That contemporaneously with Order 1, the Wife is to transfer to the Husband any right, title and interest she has in real property and/or personal property in the possession and/or control of the Husband, including but not limited to:
(a) “Property W”, [L] in NSW;
(b) Property L, [L] in NSW;
(c) “Property M”, [L]; and
(d) “Property P”, [L].
4.
That in the event that Order 1 is not complied with, and the “Property W” property has not already been sold, then the Husband is to do all things necessary to effect the sale of “Property W” by private treaty at the market value determined in accordance with Order 5, at the earliest possible date.
5.
That the market value of “Property W” be as agreed between the husband and wife or failing such agreement as determined by a valuer nominated by the President of the Real Estate Institute of the ACT, such determination to be paid for by the Husband.
6.
That in the event that the property is not sold by private treaty within sixty (60) days of the Due Date, the Husband and Wife place “Property W” with an agent for sale to be agreed between the Husband and Wife or in default of agreement with an agent ("the Agent") nominated by the President of the Real Estate Institute of the ACT.
7.
That if the “Property W” is not sold within ninety (90) days of the Due Date, or if “Property W” is sold and the sale subsequently does not proceed to completion, the Husband and Wife do all things necessary to offer “Property W” immediately for sale by public auction by the Agent, the reserve price being the market value determined in accordance with Order 5.
8.
That the Husband shall execute all documents requested by the Agent as auctioneers for sale of “Property W” by auction within 7 days of this request.
9.
That the Husband shall execute a contract of sale.
10.
That the Husband shall cooperate in every way with the Agent in relation to the auction of “Property W” including making the keys available for an inspection of “Property W” at times requested by the Agent and ensuring that the “Property W” is in a clean and neat condition at the time of inspection by the prospective purchasers.
11.
That if “Property W” is not sold at the auction within 21 days thereafter the husband and wife shall meet the market price and sell the “Property W” at the best price then obtainable.
12.
That during the period that “Property W” is being offered for sale the Husband shall allow prospective purchasers to inspect “Property W” at all reasonable hours by appointment.
13.
That the Husband and Wife do all things necessary to cause the proceeds of the sale of “Property W” to be distributed as follows:
(a) To pay all costs commissions and expenses of the sale;
(b) To pay the usual rates adjustments;
(c) To pay the amount required to discharge the mortgage;
(d) The amount owed to the Wife in accordance with Order 1; and
(e) To pay the balance to the Husband.
14.
That the time limits and the terms and conditions for sale set by these Orders may be varied by the parties by written agreement.
15.
That if either party refuses, fails or neglects to execute any document necessary to put these Orders into effect 7 days after being requested to do so, and any such refusal, failure or neglect is proved by affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Family Court at Canberra be and is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such document in the name of such party.
16.
That unless otherwise specified in these Orders each party shall otherwise retain any motor vehicles, chattels, bank accounts, personal property and superannuation in their possession or control.
17.
That liberty is granted to the parties to relist the matter within 21 days in relation to costs. In the event that there is no application regarding costs, each party is to pay their own costs.
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.