FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Musa & Waheed [2025] FedCFamC2F 215
File number(s): PAC 4534 of 2023 Judgment of: JUDGE NEWBRUN Date of judgment: 20 February 2025 Catchwords: FAMILY LAW – PROPERTY – Just and equitable orders made. Legislation: Family Law Act 1975 (Cth) Cases cited: De Angelis & De Angelis (2003) FLC 93-133
Jones & Dunkel (1959) 101 CLR 298
Khang & Asmar [2024] FedCFamC2F 1326
Kowaliw & Kowaliw (1981) FLC 91-092
Lotta & Lotta [2017] FamCA 50
Division: Division 2 Family Law Number of paragraphs: 160 Date of hearing: 31 October – 1 November 2024, 5 December 2024, 9 December 2024 Place: Parramatta Counsel for the Applicant: Mr Kenny Solicitor for the Applicant: GDA Lawyers Pty Ltd Counsel for the Respondent: Mr Rosic Solicitor for the Respondent: Simon Diab & Associates ORDERS
PAC 4534 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MUSA
Applicant
AND: MR WAHEED
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
20 FEBRUARY 2025
ON A FINAL BASIS THE COURT ORDERS THAT:
1.Within 10 weeks of the date of these Orders, the husband shall pay to the wife the sum of $345,019.
2.Simultaneously with the above payment to the wife, the wife shall transfer her entire right, title and interest in the property at B Street, Suburb C in the State of New South Wales having Folio Identifier: … ("the Suburb C property") to the husband.
The Suburb C property
3.Failing compliance with Order 1, the parties do all acts and things and sign all documents necessary to cause the Suburb C Property to be listed for sale in accordance with the following:
(a)The parties shall instruct a real estate agent to sell the Suburb C property by agreement or failing agreement, the wife shall nominate three real estate agents and the husband shall select one of the nominated real estate agents within seven days of receipt of the proposed real estate agents to act on behalf of the parties (“real estate agent”).
(b)The parties shall instruct an independent solicitor or conveyancer entitled to control and operate a trust account to act on the sale of the Suburb C property by agreement and failing agreement, the wife shall nominate three solicitors or conveyancers and the husband shall select one to act on the conveyance on behalf of the parties within seven days of receipt.
(c)The reserve and listing price shall be set as agreed between the parties in writing and failing agreement within seven days of receipt of the appointment of the real estate agent, the reserve price shall be as recommended by the real estate agent.
(d)In the event that the reserve or listing price is not reached, the sale of the Suburb C property shall be such amount as is agreed between the parties and failing agreement, an offer received to buy the Suburb C property at a price that is not less than 95 per cent of the reserve or listing…
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- Musa & Waheed [2025] FedCFamC2F 215
- Case
- [2025] FedCFamC2F 215
- Decision Date
CaseChat Overview and Summary
The court examined the respective contributions of the parties to the marriage, including financial and non-financial contributions, and the needs of each party. It also considered the future prospects and circumstances of each party. In determining the just and equitable division of property, the court applied the principles under section 79 of the Family Law Act 1975. The court ordered that Mr Waheed pay Ms Musa a sum of $345,019 within 10 weeks of the order. In exchange, Ms Musa would transfer her entire interest in the Suburb C property to Mr Waheed. If the payment was not made, the court mandated the sale of the Suburb C property under specific terms and conditions, with the net proceeds allocated towards various expenses and debts before the remaining balance was paid to Ms Musa and Mr Waheed.
Additionally, the court ordered that Mr Waheed transfer his interest in the Town E property to Ms Musa and discharge the mortgage, with Ms Musa to refinance the outstanding loan. If this transfer was not completed, the Town E property was to be sold under prescribed terms. The court also directed the distribution of personal property, debts, and liabilities between the parties. Each party was held solely responsible for their respective debts, and each party indemnified the other against any liabilities on their respective properties. The court further provided that if either party failed to comply with the orders, the Registrar of the Court would be appointed to execute the necessary documents on their behalf.
Orders
Orders of the court
PAC 4534 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS MUSA
Applicant
AND:
MR WAHEED
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
20 FEBRUARY 2025
ON A FINAL BASIS THE COURT ORDERS THAT:
1. Within 10 weeks of the date of these Orders, the husband shall pay to the wife the sum of $345,019.
2. Simultaneously with the above payment to the wife, the wife shall transfer her entire right, title and interest in the property at B Street, Suburb C in the State of New South Wales having Folio Identifier: … ("the Suburb C property") to the husband.
The Suburb C property
3. Failing compliance with Order 1, the parties do all acts and things and sign all documents necessary to cause the Suburb C Property to be listed for sale in accordance with the following:
(a) The parties shall instruct a real estate agent to sell the Suburb C property by agreement or failing agreement, the wife shall nominate three real estate agents and the husband shall select one of the nominated real estate agents within seven days of receipt of the proposed real estate agents to act on behalf of the parties (“real estate agent”).
(b) The parties shall instruct an independent solicitor or conveyancer entitled to control and operate a trust account to act on the sale of the Suburb C property by agreement and failing agreement, the wife shall nominate three solicitors or conveyancers and the husband shall select one to act on the conveyance on behalf of the parties within seven days of receipt.
(c) The reserve and listing price shall be set as agreed between the parties in writing and failing agreement within seven days of receipt of the appointment of the real estate agent, the reserve price shall be as recommended by the real estate agent.
(d) In the event that the reserve or listing price is not reached, the sale of the Suburb C property shall be such amount as is agreed between the parties and failing agreement, an offer received to buy the Suburb C property at a price that is not less than 95 per cent of the reserve or listing price shall be accepted by the parties.
(e) The parties shall cooperate in every way with the real estate agent of the Suburb C property including making the key available and allowing inspection at times as required by the real estate agent.
(f) That upon agreement being reached for the sale of the Suburb C property the parties shall execute all documents necessary to complete the sale of the Suburb C property including all transfer documentation forthwith upon its submissions to them by the real estate agent or their solicitor within no less than seven days of being requested to do so.
4. Following the sale of the Suburb C property, the net proceeds of sale be distributed in the following manner and priority:
(a) In payment of all real estate agent’s commissions, legal conveyancing fees and other sale expenses;
(b) Discharge of the mortgage outstanding;
(c) Payment of any outstanding council rates;
(d) Payment of any taxes in relation to the sale;
(e) The sum of $345,019 be paid to the wife; and
(f) The balance be paid to the husband.
The Town E property
5. Within 10 weeks of the date of these Orders:
(a) The parties do all acts and things and sign all documents necessary to transfer the husband’s entire right, title and interest in the property located at D Street, Town E in the State of New South Wales having Folio Identifier: … ("the Town E property") to the wife; and
(b) The parties do all acts and things and sign all necessary documents so as to discharge the mortgage loan secured over the Town E property and release the husband from all liabilities in relation to the mortgage loan, with the wife to refinance the sum owing into her sole name.
6. Failing compliance with Order 5, the parties do all acts and things and sign all documents necessary to cause the Town E property to be listed for sale in accordance with the following:
(a) The parties shall instruct a real estate agent to sell the Town E property by agreement or failing agreement, the husband shall nominate three real estate agents and the wife shall select one of the nominated real estate agents within seven days of receipt of the proposed real estate agents to act on behalf of the parties (“real estate agent”).
(b) The parties shall instruct an independent solicitor or conveyancer entitled to control and operate a trust account to act on the sale of the Town E property by agreement and failing agreement, the husband shall nominate three solicitors or conveyancers and the wife shall select one to act on the conveyance on behalf of the parties within seven days of receipt.
(c) The reserve and listing price shall be set as agreed between the parties in writing and failing agreement within seven days of receipt of the appointment of the real estate agent, the reserve price shall be as recommended by the real estate agent.
(d) In the event that the reserve or listing price is not reached, the sale of the Town E property shall be such amount as is agreed between the parties and failing agreement, an offer received to buy the Town E property at a price that is not less than 95 per cent of the reserve or listing price shall be accepted by the parties.
(e) The parties shall cooperate in every way with the real estate agent of the Town E property including making the key available and allowing inspection at times as required by the real estate agent.
(f) That upon agreement being reached for the sale of the Town E property the parties shall execute all documents necessary to complete the sale of the Town E property including all transfer documentation forthwith upon its submissions to them by the real estate agent or their solicitor within no less than seven days of being requested to do so.
7. Following sale of the Town E property, the net proceeds of sale be distributed in the following manner:
(a) In payment of all real estate agent’s commissions, legal conveyancing fees and other sale expenses;
(b) Discharge of the mortgage outstanding;
(c) Payment of any outstanding council rates;
(d) Payment of any taxes in relation to the sale;
(e) The balance be paid to the wife.
Personal property
8. As between the husband and the wife, and subject to the above Orders, the husband and the wife shall each respectively retain all interest in and entitlement to:
(a) All personal property now held in his/her respective possession or control.
(b) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively.
(c) All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
Other
9. Except as otherwise provided by these Orders, each party remains solely responsible for all debts, including credit card debts, in the parties’ respective names.
10. Each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
11. The parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
12. In the event either party fails to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of the Court shall be appointed pursuant to section 106A of the Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of refusal or failure by way of affidavit at the cost of the non-compliant party.
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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