FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Willis & Mulder [2025] FedCFamC2F 987
File number(s): ADC 883 of 2023 Judgment of: JUDGE MURDOCH Date of judgment: 17 July 2025 Catchwords: FAMILY LAW – PROPERTY –– where issue exists as to the value of the property of the parties available for adjustment –where issue exists as to the value of the payment to be made by the husband to the wife - where the wife seeks 65 percent of the property as she asserts in her favour – where the husband seeks that he achieve 75 percent of the property as he asserts in his favour- where there are evidentiary deficiencies and vacuums in the evidence adduced by each party and neither complied with their obligations of disclosure - where there is agreement as to how property is to be adjusted in specie- where neither party impressed as a compelling witness -where the material sought to be relied upon by the parties was disproportionate and unnecessary - where the husband made the overwhelming majority of the direct financial contributions directing weight to the use made of those contributions – where no orders made adjusting the contribution finding - orders made for the wife to receive 35 percent and the husband 65 percent of the found property pool. Legislation: Family Law Act 1975 (Cth) s 75(2), 79(4)
Family Law Amendment Act 2024 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rule 1.04, 8.15
Cases cited: Bremner & Bremner (1995) FLC 92-560
Browne v Green (1999) FLC 92-873
Chang v Su [2002] HCATrans 446
Crawford & Crawford (1979) FLC 90-647
Fields & Smith [2015] FamCAFC 57
Horrigan & Horrigan [2020] FamCAFC 25
Jabour & Jabour (2019) FLC 93–898
Lee Steere & Lee Steere (1985) FLC 91-626
Lovine & Connor & Anor [2012] FamCAFC 168
Money & Money (1994) FLC 92-485
Pierce & Pierce (1999) FLC 92-844
Robb v Robb (1995) FLC 92-555
Stanford & Stanford [2012] HCA 52
Stanford & Stanford (2012) FLC 93-518
Division: Division 2 Family Law Number of paragraphs: 172 Date of hearing: 19 – 21 May 2025 Place: Adelaide Counsel for the Applicant: Mr Richards Solicitor for the Applicant: Boylan Lawyers Solicitor for the Respondent: Litigant in Person ORDERS
ADC 883 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WILLIS
Applicant
AND: MR MULDER
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
17 JULY 2025
THE COURT ORDERS THAT:
1. Within 90 days of the date of these Orders the Husband pay to the Wife the sum of $570,470 (“the settlement sum”).
2. Contemporaneously with the husband’s payment of the settlement sum pursuant to Order 1, the Wife shall do all things necessary at her expense to remove her caveat lodged against the property at B Street, Town C, South Australia, being the whole of land contained in Certificate of Title Volume …/Folio ……
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CaseChat Overview and Summary
The court's reasoning centered on the considerable discrepancies in the evidence presented by both parties, noting that neither party had fully complied with their disclosure obligations. Despite the parties' agreement on the method of property adjustment, the court found neither party to be particularly compelling in their testimonies. Additionally, the material presented by both parties was deemed disproportionate and unnecessary. A critical factor in the court's decision was the significant financial contributions made by Mr. Mulder, which influenced the allocation of property. Consequently, the court determined that the property should be divided with Ms. Willis receiving 35 percent and Mr. Mulder receiving 65 percent of the total property pool.
In its orders, the court mandated that Mr. Mulder pay Ms. Willis $570,470 within 90 days. It also provided detailed instructions for the sale of their jointly owned property if the payment was not made, including procedures for listing, sale, and distribution of proceeds. Furthermore, the court ordered the sale of specific jewelry in Ms. Willis's possession, with the net proceeds divided between the parties. The court also outlined the ownership and responsibilities of other personal property and financial resources held by each party. Finally, the court dismissed the application for costs unless an application was filed within 28 days, specifying the requirements for such an application.
Orders
Orders of the court
ADC 883 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS WILLIS
Applicant
AND:
MR MULDER
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
17 JULY 2025
THE COURT ORDERS THAT:
1. Within 90 days of the date of these Orders the Husband pay to the Wife the sum of $570,470 (“the settlement sum”).
2. Contemporaneously with the husband’s payment of the settlement sum pursuant to Order 1, the Wife shall do all things necessary at her expense to remove her caveat lodged against the property at B Street, Town C, South Australia, being the whole of land contained in Certificate of Title Volume …/Folio … (“the Town C property”).
3. In the event the Husband fails to comply with Order 1 above the parties shall do all things necessary to effect the sale of the property and for that purpose the following shall apply:
(a) The property shall be listed for sale by private treaty with such real estate agent as is agreed between the parties and failing agreement within 14 days from the date of these Orders the real estate agent will be as nominated by the then Chair of the Board of the Real Estate Institute of South Australia at the request of the parties or either of them.
(b) The list price of the property shall be such amount as is agreed between the parties and failing agreement within 14 days of the date of these Orders the list price will be as nominated by the real estate agent.
(c) The sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least eighty percent (80%) of the list price shall be accepted by the parties as the sale price.
(d) The Husband is to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.
(e) That upon agreement being reached for sale of the property the Husband shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to him by the agent or his solicitor.
(f) The contract of sale shall provide for completion within 30 days after the date of the contract.
(g) The Wife shall do all acts and things and sign all necessary documents to remove her caveat (dealing number …) registered against the property in accordance with the terms of the sale contract so that the sale can be effected.
(h) The Respondent shall do all acts and things and sign all necessary documents to satisfy:
(i) Mr D to withdraw the caveat (dealing number: …) over the property in accordance with the terms of the sale contract so that the sale can be effected.
(ii) E Company to withdraw the caveat (dealing number …) over the property in accordance with the terms of the sale contract so that the sale can be effected.
(iii) Ms F to withdraw the caveat over the property in accordance with the terms of the sale contract so that the sale can be effected.
(i) The proceeds of sale of the property shall be paid in the following manner and priority:
(i) in payment of the agent's commission and advertising or other expenses, if any, payable on the sale;
(ii) in payment of the legal costs, water rates, and outlays relating to the sale;
(iii) in payment of 35 percent of the balance to the wife via Boylan Lawyers Trust Account;
(iv) in payment of outstanding municipal rates; and
(v) in payment of the balance to the husband.
4. In the event that the property is not sold by private treaty pursuant to Order 3 on or before six months from the date of this Order the parties shall do all acts and sign all documents as are necessary to sell the property by auction and the following shall apply:
(a) The property shall be listed with the agent appointed under Order 3 ("the auctioneer") for sale by auction within a further 3 months.
(b) The Husband shall execute all documents requested by the auctioneer for sale of the property by auction.
(c) The reserve price of the property shall be such amount as is agreed between the parties and failing agreement being reached between the parties 21 days prior to the auction, then the reserve price shall be nominated by the auctioneer.
(d) The parties shall each pay to the auctioneer one half of any sums requested for advertising or auction expenses and if one of the parties pays all of the expenses, that party shall be reimbursed from the proceeds of sale in respect of one half of such payments before any division between the parties.
(e) The Husband shall give such instructions as are necessary to a solicitor to prepare a contract of sale and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer.
(f) The Husband shall co-operate with the auctioneer in relation to the sale by auction including allowing inspection of the property at all times reasonably requested by the auctioneer and ensuring that the property is clean, neat and in good order at the time of any inspection and on the day of auction.
(g) The parties shall attend at the auction and negotiate with the highest bidder in the event of the reserve price not being reached.
(h) The sale price of the property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached the sale price of the property shall be such amount as is agreed between the parties or failing agreement any offer received after the auction to buy the property at a price that is at least 80% of the reserve price shall be accepted by the parties.
(i) The Wife shall do all acts and things and sign all necessary documents to remove her caveat (dealing number …) over the property in accordance with the terms of the sale contract so that the sale can be effected.
(j) The Husband shall do all acts and things and sign all necessary documents to satisfy:
(i) Mr D to withdraw the caveat (dealing number: …) over the property in accordance with the terms of the sale contract so that the sale can be effected.
(ii) E Company to withdraw the caveat (dealing number …) over the property in accordance with the terms of the sale contract so that the sale can be effected.
(iii) Ms F to withdraw the caveat over the property in accordance with the terms of the sale contract so that the sale can be effected.
(k) The proceeds of sale of the property shall be paid in the following manner and priority:
(i) in payment of the agent's commission and advertising or other expenses, if any, payable on the sale;
(ii) in payment of the legal costs, water rates, and outlays relating to the sale;
(iii) in payment of 35 percent of the balance to the wife via Boylan Lawyers Trust Account;
(iv) in payment of outstanding municipal rates; and
(v) in payment of the balance to the husband.
5. In the event that the property is not sold at the auction pursuant to Order 4 or within 14 days after the date of the auction by further negotiation, then the Husband shall cause a further auction of the property to be held within 4 months after the date of the first auction and for that purpose the provisions of Order 4 shall apply.
6. That the parties forthwith do all such things as are necessary to list for sale and sell jewellery in the wife’s possession and to this end:
(a) The Wife shall within seven days of the date of these orders propose to the Husband three suitably qualified agents to sell the items;
(b) Within a further seven days the Husband shall elect which of such agents shall undertake the sale;
(c) Within a further seven days the parties shall forward a joint letter of instruction to the agent undertaking the sale;
(d) The parties are granted leave to provide to the agent a copy of these orders only;
(e) The method of sale shall be as agreed between the parties in writing within 28 days, and if no such agreement is able to be reached as determined by the agent;
(f) The sale price shall be as agreed between the parties in writing within 28 days and if no such agreement is able to be reached as determined by the agent;
(g) After payment of all costs incurred by the agent for such sale including any advertising costs, the net proceeds shall be provided as to 35% to the Wife and 65% to the Husband.
7. Except as otherwise provided for in these Orders, the Wife and the Husband each be the sole legal and beneficial owners of all items of all property including household contents, money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively to the exclusion of the other.
8. Except as otherwise provided for in these Orders, the parties are each solely entitled to the exclusion of the other to all financial resources of whatsoever nature and kind in their name, possession, or control and to which they are or may become entitled.
9. Except as otherwise provided for in these Orders, each party shall retain to the exclusion of the other, sole responsibility for all and any liability currently in their names.
10. 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.
11. In the event any party fails or neglects to execute any document so as to give validity and effect to these orders, a Judicial Registrar of this Court is empowered pursuant to s 106A of the Act to execute such document on behalf of the party in default upon being satisfied of such failure and neglect by way of affidavit evidence, and the party in default shall pay the reasonable costs of the party making application pursuant to this order as assessed by a judicial registrar on a solicitor client basis.
12. Save as to costs, the Application filed on 28 February 2023 as amended on 13 May 2024 and the Response filed 31 July 2023 are dismissed.
13. Should any party wish to press an application for the costs of or incidental to these proceedings, they are to file and serve within 28 days of the date of these orders an Application in a Proceeding specifying the orders sought and any affidavit in support thereof of no more than ten pages and five annexures.
14. In the event an application is filed pursuant to Order 13, each of the parties are to advise in their relief sought if they require an oral hearing as to the issue of costs. In the event no such order is sought, the application will be heard and determined on the papers in Chambers and directions will be made for the preparation of written submissions.
15. In the event that no application is filed pursuant to Order 13 then all applications for costs will be and are hereby dismissed.
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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