Broda & Broda [2025] FedCFamC1A 218 (24 November 2025)

1. The appellant's application for costs against the respondent is dismissed.
2. The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.

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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Broda & Broda has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons explain why an appeal from financial orders made between the parties on 2 December 2024 must succeed.

1. Financial proceedings between the parties under Pt VIII of the Family Law Act 1975 (Cth) ("the Act") were commenced in April 2023, following their separation in January 2020.
2. The proceedings were tried before a judge of the Federal Circuit and Family Court of Australia (Division 2) in November 2024. Judgment was published shortly thereafter.
3. The net value of the parties' assets and superannuation was found to be $364,099 (at [14]).
4. His Honour found the wife's contribution-based entitlement was assessed at 60 per cent (at [29]) and she was entitled to a further 7.5 per cent adjustment by reason of factors prescribed by s 75(2) of the Act (at [38]), making for her overall entitlement to 67.5 per cent of the net assets and superannuation.
5. To effect that outcome, the orders provided for: the husband to pay the wife the sum of $89,629 (Order 1); the wife to acquire sole ownership of one real property in Victoria (Order 2); the husband to acquire sole ownership of another real property in Victoria (Order 3); the split of the husband's superannuation interest in favour of the wife (Orders 13-17); the parties' retention of specified personal property (Orders 10-12 and 18-19); and the division of the parties' responsibility for liabilities (Orders 20-22).
6. In default of the payment due by the husband under Order 1, the husband's real property was to be sold to ensure the wife's payment from the net sale proceeds (Orders 4-9). At trial, the parties agreed the husband's real property was worth $110,000 (at [11]).
7. Relevantly for present purposes, Order 4(c) provided for the wife's payment from the net sale proceeds in these terms:
   1. In the event that the [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:

...

(c) In payment to the [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 [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.

1. As can be seen, Order 4(c) makes no provision for the wife's payment of her share if the husband's real property is sold for less than $110,000 - only if it is sold for exactly $110,000 (Orders 4(c)(i)) or for more than $110,000 (Order 4(c)(ii)).
2. On 18 December 2024, about two weeks after judgment was delivered, the wife attempted to file an Application in a Proceeding seeking that Order 4(c) be rectified under the slip rule to make provision for her to be paid proportionately from the net sale proceeds of the husband's property if it is sold for less than $110,000.
3. The Application was not filed. An email was sent from the Court Registry to the wife's lawyers on 18 December 2024 saying this:

... Orders can be corrected if there is a clerical mistake or an accidental slip or omission by emailing the registry where the order was made.

Please provide the following information:

• Name
• File number
• A copy of the orders made.
• The error ...

1. The wife followed the advice. Her lawyers sent a letter dated 19 December 2024 with that information to the chambers of the primary judge.
2. In response to her letter, the primary judge's associate emailed the wife's lawyers on 17 January 2025 summarily rejecting the slip rule application, saying this:

The amendment requested [by the letter] has not been made. Order 4(c) is in the form of order sought by the [wife] in her proposed minute of order. It is not amenable to amendment in the manner requested under r 10.13 [of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021].

1. It is true the wife's Minute of Proposed Orders did only make provision for her payment out of the net sale proceeds if the gross sale price was $110,000 or more, but that did not foreclose the scope for operation of the slip rule.
2. The time for any appeal from the judgment expired on 30 December 2024.
3. The time for the husband's payment of $89,629 to the wife under Order 1 expired on 27 January 2025. He failed to make the payment. He also did nothing to sell his real property, as required by Orders 4-9, and refused to respond to the wife's informal entreaties about her payment of a proportionate sum if his property was sold for less than $110,000.
4. Eventually, the wife obtained a grant of legal aid and filed an application for an extension of time within which to appeal, which was granted by the appeal registrar. The husband did not apply to review the appeal registrar's decision. The wife's appeal was filed on 25 August 2025 and listed for hearing on 24 November 2025.

1. The wife pleads three grounds of appeal, couched as legal and discretionary errors, but her fundamental proposition is singularly simple: Order 4(c) does not properly reflect the decision made by the primary judge that she should receive 67.5 per cent of the net value of the parties' assets and superannuation.
2. That proposition must be accepted as being correct if it be the case that the husband's real property sells for less than $110,000 - regardless of whether the sale proceeds voluntarily with the husband's concurrence (which seems unlikely) or the sale proceeds because of enforcement action necessarily taken by the wife.
3. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provide that an order of the Court may be varied at any time if it does not reflect the intention of the Court (r 10.13(1)(e)), there is a clerical mistake in the order (r 10.13(1)(g)), or the order is beset by an error caused by an accidental slip (r 10.13(1)(h)). Each of the sub-rules could be deployed to rectify Order 4(c) to ensure the wife receives her proper entitlement if the husband's real property must be sold due to his default and it realises a sale price of less than $110,000.
4. The availability of the slip rule is to avoid injustice by ensuring the judgment reflects the Court's intention when judgment was published and to prevent unintended consequences (Gould v Vaggelas (1985) 157 CLR 215 at 275). The correction of an order, even after it is finally perfected, is permissible to ensure the Court record represents what the Court intended to pronounce (NH v Director of Public Prosecutions (SA) [2016] HCA 33; (2016) 260 CLR 546 at [67]-[71]; Achurch v The Queen [2014] HCA 10; (2014) 253 CLR 141 at [14]-[27]). Those principles certainly have current application.
5. On past occasions, the Full Court has observed how perfected orders may by varied by use of the slip rule to correct errors without the appeal needing to be necessarily allowed (Agius & Agius [2010] FamCAFC 143; (2010) FLC 93-442 at [169]-[175]; King v Kemp [1996] FamCA 24; (1996) FLC 92-673 at 83,010). The slip rule may be deployed by either the appellate court (Gilles & Irby [2016] FamCAFC 13; (2016) FLC 93-687 at [10]-[20]; Goudarzi & Bagheri (No 2) [2017] FamCAFC 190 at [57]-[62]) or the primary judge.
6. Given the primary judge's refusal to deploy the slip rule to amend the orders, to quell any potential controversy about an appellate court simply substituting its view for that of the primary judge about the correct use of the slip rule, the appeal should be allowed for legal error.
7. True enough, the primary judge's error was induced by the infelicitous drafting of proposed orders by the wife's lawyers, but that error did not excuse the primary judge from the legal obligation making just and equitable orders to finalise the cause of action. The orders evidently were not just and equitable because they do not ensure the wife receives her 67.5 per cent share of the property in the event of the husband's default (which has already occurred) and the potentiality of his real property not realising a gross sale of price of at least $110,000.

1. The appeal is allowed.
2. Pursuant to s 36(1)(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), Order 4(c) in its present form is set aside and replaced by a new order in this form:

(c) in payment to the [wife] 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 Victorian Property is less than $110,000, then the Applicant wife shall receive the sum of $89,629, less 32.5 per cent of each dollar by which the sale price of the Victorian Property is under $110,000; or

(iii) 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 Property exceeds $110,000.

1. It is unnecessary to receive the further evidence the wife wanted to adduce, so her Application in an Appeal filed on 30 October 2025 may be dismissed.
2. The wife sought costs against the husband, but there is no justification for it. The error of law was made by the primary judge, induced by the drafting error of the wife's lawyer. The error was not the husband's fault. He opposed the appeal, but not in such a way as to increase the wife's costs of rectifying the error.
3. The wife should have a costs certificate for the appeal pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth).

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.