FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Willmann & Willmann (No 10) [2023] FedCFamC1F 623
File number(s): SYC 6037 of 2021 Judgment of: TREE J Date of judgment: 28 July 2023 Catchwords: FAMILY LAW – PROPERTY – Preliminary issue – Where the husband sought equitable relief against the wife’s parents in relation to a property owned by them – Where the husband principally sought a declaration that the wife’s parents hold the property on trust for the husband and wife and a transfer of the property to them – Where the husband sought alternative claims for an equitable charge or equitable compensation – Whether the husband may litigate a claim for equitable relief on the wife’s behalf – Where the husband relies upon a number of alleged representations made by the parents that the property would be transferred to the husband and wife – Where the parties’ and their witnesses’ evidence was approached with circumspection given the length of time between the events and the trial – Where there was little contemporaneous evidence of the alleged representations – Where contemporaneous records or events themselves were afforded greater weight than mere purported recollection – Where the Court is not satisfied any of the representations were made in the terms, or having the purport, asserted by the husband – Where the husband’s claim fails at the first hurdle – Where the balance of the husband’s claim is resolved in any event – Inducement – Where there is staggering disproportionality between the claimed detriment and the asserted entitlement to the property – Where the husband’s claim against the parents fails and is dismissed. Legislation: Family Law Act 1975 (Cth) s 78 Cases cited: Blacket v Barnett [2017] NSWSC 1032
Camden Pty Ltd & Laue (2018) FLC 93-840; [2018] FamCAFC 91
Donis v Donis (2007) 19 VR 577; [2007] VSCA 89
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
Valceski v Valceski (2007) 70 NSWLR 36; [2007] NSWSC 440
Warby and Warby (2002) FLC 93-091; [2001] FamCA 1469
Division: Division 1 First Instance Number of paragraphs: 157 Date of hearing: 13–17 & 23–24 March 2023 Place: Sydney Counsel for the Applicant: Mr Mathews Solicitor for the Applicant: Barkus Doolan Winning Counsel for the First Respondent: Mr Williams SC with Mr Stapleton Solicitor for the First Respondent: Watts McCray Counsel for the Second and Third Respondents: Mr Moses SC with Ms Petrie Solicitor for the Second and Third Respondents: Pigdon Norgate Family Lawyers ORDERS
SYC 6037 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WILLMANN
Applicant
AND: MR WILLMANN
First Respondent
MR ANDREWS
Second Respondent
MS ANDREWS
Third Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
28 JULY 2023
THE COURT ORDERS THAT:
1.The first respondent’s claim against the second and third respondents is dismissed.
Note: The form of the order is…
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- AGLC
- Willmann & Willmann (No 10) [2023] FedCFamC1F 623
- Case
- [2023] FedCFamC1F 623
- Decision Date
CaseChat Overview and Summary
Mr Willmann brought a claim against his parents, Mr and Mrs Andrews, as well as against his sister, Ms Willmann, and her husband, seeking orders for property settlement in accordance with section 90SM of the Family Law Act 1975 (Cth). The claim was heard before the Family Court of Australia and concluded on 24 March 2023. The court was tasked with determining whether Mr Willmann was entitled to a share of the property held by his parents, referred to as D Property, and whether any other orders should be made in relation to the property settlement. The court had to consider the contributions made by Mr Willmann to the acquisition, maintenance, and improvement of D Property, as well as the extent to which any such contributions were recognised or compensated by his parents.
The court considered various aspects of Mr Willmann's claim, including his contributions to the property, the nature of his relationship with his parents, and the circumstances surrounding the acquisition and management of D Property. The court examined the evidence provided by Mr Willmann, his parents, and other witnesses, and assessed the validity of Mr Willmann's claims in light of the relevant legal principles. The court determined that Mr Willmann's claim against his parents failed, and his claim against his sister and her husband was also dismissed. The court found that Mr Willmann's contributions to D Property were not sufficient to warrant a property settlement order, and that any contributions he made were adequately recognised or compensated by his parents.
In conclusion, the court dismissed Mr Willmann's claim against his parents and sister, and no further orders were made in relation to the property settlement. The court found that Mr Willmann's contributions to D Property were not sufficient to warrant a property settlement order, and that any contributions he made were adequately recognised or compensated by his parents. The court also found that there were no other grounds upon which Mr Willmann could be entitled to a property settlement. The decision of the court brings finality to the proceedings and ensures that the parties are aware of their respective rights and obligations in relation to D Property.
The court considered various aspects of Mr Willmann's claim, including his contributions to the property, the nature of his relationship with his parents, and the circumstances surrounding the acquisition and management of D Property. The court examined the evidence provided by Mr Willmann, his parents, and other witnesses, and assessed the validity of Mr Willmann's claims in light of the relevant legal principles. The court determined that Mr Willmann's claim against his parents failed, and his claim against his sister and her husband was also dismissed. The court found that Mr Willmann's contributions to D Property were not sufficient to warrant a property settlement order, and that any contributions he made were adequately recognised or compensated by his parents.
In conclusion, the court dismissed Mr Willmann's claim against his parents and sister, and no further orders were made in relation to the property settlement. The court found that Mr Willmann's contributions to D Property were not sufficient to warrant a property settlement order, and that any contributions he made were adequately recognised or compensated by his parents. The court also found that there were no other grounds upon which Mr Willmann could be entitled to a property settlement. The decision of the court brings finality to the proceedings and ensures that the parties are aware of their respective rights and obligations in relation to D Property.
Orders
Orders of the court
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Background
Background to the litigation
Mr Willmann’s claim against the parents was listed as a separate issues trial before me, and concluded on 24 March 2023, when I reserved my decision. This is that decision and the reasons for it.BACKGROUNDThe family Mr Andrews was born in 1951 and is 71 years of age. Ms Andrews was born in 1953 and is 70 years of age. There are four children to their marriage, being Mr AE born in 1979, Ms Willmann born in 1981, Mr AF born in 1989 and Mr AG born in 1990. It is convenient to collectively refer to the parents and their four children as “the Andrews”. All of the Andrews were called as witnesses in the parents’ case before me. Ms Willmann is currently 42 years of age. Mr Willmann was born in 1979 and is 44 years of age. Mr Willmann was a school friend of Mr AE. On Mr Willmann’s case, he and Ms Willmann commenced cohabitation in 2003, and whilst Ms Willmann claims it was 2005, nothing turns on that in this respect of these proceedings. They subsequently married in 2008 and separated on 1 January 2018. An order for their divorce was made in 2022. Mr Willmann and Ms Willmann have two children together, namely, X born in 2009, and Y born in 2012, who live with their parents in an equal time arrangement. Both Mr Willmann and Ms Willmann have each re-partnered. D Property In 1983, the parents purchased D Property, which originally comprised over 600 acres. Since then, they have added and sold a number of parcels of land to and from the property, and thus its constituent titles and boundaries have varied over time, although it has nonetheless been regarded as one continuing property, albeit variously constituted. It currently comprises three titles, namely:(a)Dwelling 1, D Property in DP …90 (approximately 110 hectares);(b)Unit 1 M Street in DP …19 (approximately 120 hectares); and (c)Unit 2 M Street in DP …41 (approximately 10 hectares). The parents have operated, and continue to conduct businesses on D Property. The property and the businesses require considerable management and maintenance, and at all relevant times the parents have utilised employees to assist in those regards. These have included full-time staff, some of whom lived on site, as well as part-time and casual staff. A number of those staff members were called as witnesses in the parents’ case including Mr AH (general manager of the property), Ms AJ (manager from 2012 to 2014), Mr AK (manager from 2017 to 2018) and Mr AL (employee from 2010 to 2011). There are a number of dwellings located on D Property, presently comprising the following:(a)The main home which was built by the parents in 1985 (“the main home”). It was extended in 1987, 1989 and 1990. Ms Willmann presently resides there with at least her and Mr Willmann’s children, and seemingly also her partner;(b)A brick dwelling which was built in 1987/1988 and extended in 2003/2004. The parents had previously lived in the dwelling at various times. Mr AF, his wife and their three children currently live in the dwelling;(c)The dwelling and outdoor facilities located close to the main home. This is where the parents nowadays reside when they stay at D Property;(d)A studio building which was converted from an old building, which is where Mr AG, his wife and their children currently reside;(e)Three portable structures which were purchased and relocated to D Property. Two portable structures are currently used by staff members of the property and the third is rented to an external tenant;(f)A timber dwelling, which has been occupied by long term employees of the property, Mr AH and Ms AM and their two daughters;(g)A second timber dwelling which is presently rented to a tenant.Relevant chronology
Evidence
Evidence Before The Court
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Decision
Reasons for decision
One option might be to order the taking of accounts and the making of inquiries, although no party sought it. Therefore even if I were wrong in virtually all respects, unless my errors also included the failure to impose or recognise a constructive trust of D Property, the matter could not presently end in final judgment, but rather would need to be relisted for further argument and directions to enable it to conclude on proper material.CONCLUSION Mr Willmann’s claim (and Ms Willmann’s claim brought by Mr Willmann), against the parents fails, and will be dismissed.
Ratio Decidendi
Legal Principle Established
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