FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Broda & Broda [2024] FedCFamC2F 1695
File number(s): PAC 1838 of 2023 Judgment of: JUDGE NEWBRUN Date of judgment: 2 December 2024 Catchwords: FAMILY LAW – PROPERTY – Just and equitable orders made. Legislation: Family Law Act 1975 (Cth) ss 75, 79 Cases cited: Lotta & Lotta [2017] FamCA 50 Division: Division 2 Family Law Number of paragraphs: 47 Date of hearing: 21 November 2024 Place: Parramatta Counsel for the Applicant: Ms Mattar Solicitor for the Applicant: Lamrocks Solicitors Counsel for the Respondent: The Respondent appeared in person ORDERS
PAC 1838 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BRODA
Applicant
AND: MR BRODA
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
2 DECEMBER 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.Within 56 days of the date of these Orders, the Respondent Husband shall pay to the Applicant Wife the sum of $89,629.
2.Simultaneously with the payment referred to in Order 1 above, the Respondent Husband shall provide the Applicant Wife with the title deeds to the property at 1 B Street, Town C, Victoria being Volume … Folio …, Crown Allotment … Section … Township of Town C, Crown Allotment … Section … Township of Town C and Crown Allotment … Section … Township of Town C Parish of Region D.
3.Simultaneously with the payment referred to in Order 1 above, the Applicant Wife shall:
(a)Do all acts and sign all documents necessary to transfer her right, title and interest in the property known as 2 B Street, Town C in the state of Victoria being the whole of the land contained in Volume … Folio … being Crown Allotment … Section … Township of Town C Parish of Region D (‘the Victoria Property’) to the Respondent Husband and from the date of these Orders, the Respondent Husband shall be solely liable for all outgoings payable in relation to the Victoria Property;
(b)Do all acts and provide all consents and sign all documents as are necessary to cause the Legal Aid Commission of NSW (“the Caveator”) to withdraw Caveat number … secured over the Victoria Property.
4.In the event that the Respondent Husband fails to make the payment referred to in Order 1 within 56 days of the date of these Orders, then within a further 21 days the parties shall sign all documents and do all things necessary to cause the Victoria Property to be sold at the earliest possible date by private treaty and the proceeds of sale be disbursed in the following manner and priority:
(a)In payment of agents’ commission, advertising expenses, conveyancing adjustments and legal expenses of the sale;
(b)In payment of costs incurred in relation to the nomination of a real estate agent (if any), in payment of costs incurred in relation to the nomination of a solicitor (if any) and in payment of costs in relation to determination of value or selling price by the President…
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- AGLC
- Broda & Broda [2024] FedCFamC2F 1695
- Case
- [2024] FedCFamC2F 1695
- Decision Date
CaseChat Overview and Summary
The primary legal issues the Court had to decide involved the division of the matrimonial property, the allocation of personal liabilities, and the distribution of superannuation interests. The Court had to determine the appropriate division of the properties located at 1 B Street and 2 B Street, Town C, Victoria, as well as the respective rights to personal belongings, motor vehicles, and bank accounts. Additionally, the Court had to allocate superannuation interests in accordance with the Family Law Act 1975 (Cth).
The Court, after considering the evidence and submissions from both parties, concluded that a just and equitable outcome required a detailed division of the assets. The Court ordered that Mr Broda pay Ms Broda $89,629 within 56 days and transfer the title deeds of 1 B Street, Town C to her. Ms Broda was required to transfer her interest in 2 B Street, Town C to Mr Broda and withdraw a caveat over the property. In the event of non-payment, the property was to be sold, with the proceeds distributed according to the Court's orders. The Court also allocated a base amount of $92,093 to Ms Broda from Mr Broda’s superannuation fund. The Court further directed that each party retain their respective personal belongings, motor vehicles, bank accounts, and other assets, and declared each party solely responsible for their personal liabilities.
The Court's orders ensure a fair and detailed division of the parties' assets and liabilities, providing clarity and finality to the dispute.
Orders
Orders of the court
PAC 1838 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS BRODA
Applicant
AND:
MR BRODA
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
2 DECEMBER 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1. Within 56 days of the date of these Orders, the Respondent Husband shall pay to the Applicant Wife the sum of $89,629.
2. Simultaneously with the payment referred to in Order 1 above, the Respondent Husband shall provide the Applicant Wife with the title deeds to the property at 1 B Street, Town C, Victoria being Volume … Folio …, Crown Allotment … Section … Township of Town C, Crown Allotment … Section … Township of Town C and Crown Allotment … Section … Township of Town C Parish of Region D.
3. Simultaneously with the payment referred to in Order 1 above, the Applicant Wife shall:
(a) Do all acts and sign all documents necessary to transfer her right, title and interest in the property known as 2 B Street, Town C in the state of Victoria being the whole of the land contained in Volume … Folio … being Crown Allotment … Section … Township of Town C Parish of Region D (‘the Victoria Property’) to the Respondent Husband and from the date of these Orders, the Respondent Husband shall be solely liable for all outgoings payable in relation to the Victoria Property;
(b) Do all acts and provide all consents and sign all documents as are necessary to cause the Legal Aid Commission of NSW (“the Caveator”) to withdraw Caveat number … secured over the Victoria Property.
4. In the event that the Respondent Husband fails to make the payment referred to in Order 1 within 56 days of the date of these Orders, then within a further 21 days the parties shall sign all documents and do all things necessary to cause the Victoria Property to be sold at the earliest possible date by private treaty and the proceeds of sale be disbursed in the following manner and priority:
(a) In payment of agents’ commission, advertising expenses, conveyancing adjustments and legal expenses of the sale;
(b) In payment of costs incurred in relation to the nomination of a real estate agent (if any), in payment of costs incurred in relation to the nomination of a solicitor (if any) and in payment of costs in relation to determination of value or selling price by the President of the Victorian Division of the Australian Property Institute or his/her nominee (if any);
(c) In payment to the Applicant Wife of the following sum:
(i) The sum of $89,629 if the sale price of the Victoria property is $110,000, or;
(ii) If the sale price of the Victoria Property is greater than $110,000, then the Applicant wife shall receive the sum of $89,629 plus 67.5 per cent of each dollar by which the sale price of the Victoria exceeds $110,000.
(d) In payment to the Respondent Husband of the balance then remaining.
5. For the purposes of Order 4 above, the Real Estate Agent to act in respect of the sale shall be as agreed by the parties and, failing agreement within seven (7) days of default of Order 1, shall be a Real Estate Agent appointed by the President of the Real Estate Institute of Victoria or his/her nominee.
6. For the purposes of Order 4 above, the Solicitor or Conveyancer to act in respect of the sale shall be as agreed by the parties and, failing agreement within seven (7) days of default of Order 1, shall be a Solicitor appointed by the President of the Law Institute of Victoria or his/her nominee.
7. For the purposes of Order 4 above, the listing price and sale price for the Victoria property shall be as agreed between the parties and, failing agreement within seven (7) days of default of Order 1, shall be at the sale price determined by the President of the Victorian Division of the Australian Property Institute or his/her nominee and the listing price shall be in accordance with the recommendation by the real estate agent acting on the sale.
8. In the event there is not an exchanged sale of the Victoria Property by private treaty pursuant to Order 4 above within 20 weeks of the date of listing for sale, then the parties shall forthwith do all things necessary to cause the Victoria Property to be sold by public auction at the earliest possible date at a price to be agreed upon between the parties or nominated by the President of the Victorian Division of the Australian Property Institute or his/her nominee at a reserved price agreed upon between the parties and failing agreement to be determined by the President of the Victorian Division of the Australian Property Institute or his/her nominee and on completion of sale the proceeds of sale shall be disbursed as provided for in Order 4 above save that the parties shall, prior to distribution of proceeds to them personally equally pay and bear as and when they fall due all costs associated with the auction process.
9. In the event that the Victoria Property is not sold by public auction in accordance with Order 8 above after the first auction takes place, then the parties shall do all things forthwith to resubmit the property for sale by private treaty at the earliest possible date at a price to be agreed between the parties and failing such agreement to be determined by the President of the Victorian Division of the Australian Property Institute or his/her nominee and that the proceeds of sale be disbursed in accordance with Orders 4 above.
10. Within 21 days of the date of these Orders, the Applicant Wife shall propose to the Respondent Husband three days each with a three hour window for her to attend the former matrimonial home at 2 B Street, Town C, Victoria to collect her personal items, personal effects and belongings, Motor Vehicle 1 and Motor Vehicle 2.
11. In the event that the Respondent Husband does not elect a day nominated by the Applicant Wife pursuant to Order 10 within seven (7) days of being provided with three dates, then the Applicant Wife shall be at liberty to decide which of the three dates and times she attends 2 B Street, Town C Victoria and will confirm such date in writing to the Respondent Husband at least seven days prior to her attendance.
12. For the purposes of Orders 10 and 11 above, the Respondent Husband shall not be present at 2 B Street, Town C, Victoria on the day nominated by the Applicant Wife to attend this property, in accordance with this Order.
13. A base amount of $92,093 is allocated, as required by section 90XT(1)(a) of the Family Law Act 1975 (Cth) to the Applicant Wife out of the Respondent Husband's interest in the Trustee for Super Fund 1 ("the Fund") DOB: 1971.
14. In accordance with section 90XT(1 )(a) of the Family Law Act 1975 (Cth), the Court:
(a) Creates an entitlement on the part of the Applicant Wife to be paid the amount calculated in accordance with part 6 of the Family Law (Superannuation) Regulation 2001 (Cth); and
(b) Makes a corresponding reduction in the entitlement to the Applicant Husband or such other person whom a splittable payment may be made or would have had in the Fund but for this Order.
15. Whenever the Trustee for Super Fund 1, ("the Trustee") makes a splittable payment out of the Respondent Husband's interest in the fund, the Trustee shall do all acts and things and sign all documents as may be necessary to pay the entitlement created in Order 14 above in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth).
16. Orders 13 to 15 above have effect from the operative time, and the operative time is four (4) business days after the service of a sealed copy of these Orders on the Trustee.
17. These Orders bind the Trustee of the Fund.
18. As between the Applicant Wife and the Respondent Husband, and subject to the above Orders and pursuant to section 78 of the Family Law Act 1975 (Cth) the Applicant Wife shall retain all interests in and entitlement to:
(a) Any motor vehicles registered in her sole name;
(b) Motor Vehicle 3 ;
(c) Motor Vehicle 1;
(d) Motor Vehicle 4;
(e) Motor Vehicle 2;
(f) Her interest in the property known as and situate at 1 B Street, Town C, Victoria being Volume … Folio …, Crown Allotment … Section … Township of Town C, Crown Allotment … Section … Township of Town C and Crown Allotment … Section … Township of Town C Parish of Region D;
(g) Motor Vehicle 5;
(h) Motor Vehicle 6;
(i) Bank accounts held in her sole name;
(j) All personal property now in her respective possession or control;
(k) All shares, debentures, in unit trusts, bank, building society or credit union accounts standing in her sole name respectively including her E Company Shares; and
(l) All interests in life insurance policies and superannuation funds standing in her sole name respectively.
19. As between the Applicant Wife and the Respondent Husband, and subject to the above Orders and pursuant to section 78 of the Family Law Act 1975 (Cth) the Respondent Husband shall retain all interests in and entitlement to:
(a) Any motor vehicles registered in his sole name;
(b) Motor Vehicle 7;
(c) Bank accounts held in his sole name;
(d) All personal property now in his respective possession or control;
(e) All shares, debentures, in unit trusts, bank, building society or credit union accounts standing in his sole name respectively; and
(f) All interests in life insurance policies and superannuation funds standing in his sole name respectively.
20. The Applicant Wife shall be solely liable for all sums of money lent to the parties by Ms F and Mr G during the relationship.
21. The Applicant Wife shall be declared solely responsible as between the Applicant Wife and the Respondent Husband for all liabilities in her sole name, and the Applicant Wife indemnifies the Respondent Husband and shall forever keep the Respondent Husband indemnified with respect to any and all of the Applicant Wife's personal liabilities.
22. The Respondent Husband shall be declared solely responsible as between the Applicant Wife and the Respondent Husband for all liabilities in his sole name and the Respondent Husband indemnifies the Applicant Wife and shall forever keep the Applicant Wife indemnified with respect to any and all of the Respondent Husband's personal liabilities.
23. Each party shall do all things necessary, including providing all consents to give effect to these Orders in the time periods prescribed in these Orders.
24. In the event that either party refuses or neglects to comply with any of these Orders in relation to the execution of any deed, instrument or document the Court appoints and authorises pursuant to section 106A of the Family Law Act a Judicial Registrar of the Federal Circuit and Family Court of Australia to execute such deed, instrument or document in the name of the party who so refuses or neglects and further appoints that Registrar to do all acts and things necessary to give validity and operation to the deed, instrument or document.
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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