Federal Circuit and Family Court of Australia
(DIVISION 1)
Willmann & Willmann (No 3) [2022] FedCFamC1F 827
File number(s): SYC 6037 of 2021 Judgment of: CAMPTON J Date of judgment: 27 October 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Separating issues – Where the husband asserts a beneficial interest in a property held by the wife’s parents – Consideration of the appropriateness of hearing the husband’s claim against the wife’s parents as a separate issue – Application of r 10.10 and 10.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Consideration of the approach to be taken having regard to the family law practice and procedures as contained in s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Separate determination ordered. Legislation: Family Law Act 1975 (Cth) ss 79, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 10.11, 12.02, 12.06
Cases cited: Luadaka & Luadaka (1998) FLC 92-830; [1998] FamCA 1520
Marley & Ormonde [2020] FamCA 1046
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Southwell v Bennett [2010] NSW 1372
Tom Folino-Gallo & Sons Investments Pty Ltd v Zulian [2019] NSWSC 596
Division: Division 1 First Instance Number of paragraphs: 76 Date of hearing: 21 October 2022 Place: Sydney Counsel for the Applicant: Mr Williams KC Solicitor for the Applicant: Barkus Doolan Winning Counsel for the First Respondent: Mr Macauley Solicitor for the First Respondent: Sim & Co Legal Services Counsel for the Second and Third Respondents: 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:
CAMPTON J
DATE OF ORDER:
27 OCTOBER 2022
THE COURT ORDERS THAT:
1.Pursuant to r 10.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the relief sought in paragraphs 3 – 7 of the husband’s Response to Initiating Application filed 18 October 2021 and as pleaded in his Points of Claim filed 15 December 2021, and the second and third respondent’s Response to Initiating Application filed 2 June 2022 and as pleaded in their Points of Defence filed 2 June 2022, be listed for trial over five days before Tree J commencing on 13 March 2023 at 10.00 am in person at the Sydney Registry (“the separate issues trial”).
2.The balance of the relief sought by the second and third respondents as contained in their Response to an Application in a Proceeding filed 8 September 2022 identified as being an application for security for costs be adjourned for hearing before Tree J in the separate issues trial, and the costs of the parties of and incidental to that Response to an Application…
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- AGLC
- Willmann & Willmann (No 3) [2022] FedCFamC1F 827
- Case
- [2022] FedCFamC1F 827
- Decision Date
CaseChat Overview and Summary
In the case of Willmann & Willmann (No 3), the respondents filed a detailed Case Outline on 18 October 2022. The husband filed extensive written submissions in opposition to the application for a separate hearing on 19 October 2022. The wife also filed written submissions regarding the separate hearing issue on the same date. The case involves a dispute between the husband and wife, both of whom are in their forties. The wife was born in 1981, and the husband was born in 1979. In the year of the wife's birth, the respondents, presumably the wife's parents, acquired a property at C Street, B Town, New South Wales, known as the D Property. The property consists of a family home, a separate cottage, and other dwellings and buildings. The respondents raised their four children, including the wife, in the family home. The husband and wife lived in the family home from 2011 to 2017. The wife filed an Initiating Application on 18 August 2021, seeking an adjustment of property pursuant to section 79 of the Family Law Act 1975 (Cth) ("the Act"). She sought to receive 70% of the property, while the husband sought an equal adjustment of the property in his Response to the Initiating Application filed on 18 October 2021. He also sought a declaration that the respondents hold the property at Dwelling 1, D Property on trust for him and the wife as tenants in common in equal shares and orders implementing the transfer of that property to them. The husband further sought a declaration that Dwelling 1, D Property was subject to an equitable charge in favour of him and the wife "for such amount as the court deems is just and equitable, for the contributions (financial and non-financial)" made and monies by way of damages for any prejudice he and the wife suffered. He sought further consequential orders for the sale of Dwelling 1, D Property to liquidate the contended interest he asserted as held by him and the wife.
The legal issues the court was required to decide in this case revolved around the application for a separate determination of an issue under Rule 10.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"). The court had to determine whether the application for a separate decision on any issue was appropriate, considering factors such as the potential disposal of all or part of the proceeding, the possibility of making a trial unnecessary or substantially shorter, and the potential to save substantial costs. The court also had to consider the considerations set out in Marley & Ormonde [2020] FamCA 1046, which included the overriding purpose of the Civil Procedure Act 2005, the just, quick, and cheap resolution of the real issues in the proceedings, and the potential complications that could arise in relation to appeals, overlapping factual issues, or questions of credit if the same witnesses had to give evidence in relation to a separated question and those that were not. The court had to weigh these factors against the time likely to be taken in the hearing of a separate question and the availability of hearing dates for that purpose, against the time and expense of a substantive hearing and the length of time likely to elapse before such a hearing would take place. The court also had to consider the attitude of the parties and the relative importance of various factors to be considered in exercising the discretion conferred.
The court's reasoning and outcome in this case were based on the considerations outlined in Marley & Ormonde [2020] FamCA 1046. The court found that it was necessary to clearly see that the separate determination of the question would facilitate the quicker and cheaper resolution of the proceedings. The court also considered whether the separate determination of the question might contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the proceedings, or contribute to the settlement of the litigation. The court weighed the potential complications that could arise in relation to appeals, overlapping factual issues, or questions of credit if the same witnesses had to give evidence in relation to a separated question and those that were not. The court also considered the attitude of the parties and the relative importance of various factors to be considered in exercising the discretion conferred. Based on these considerations, the court decided not to make an order for a separate determination of the issue. The court found that the application for a separate determination of the issue was not appropriate, as it would not contribute to the just, quick, and cheap resolution of the real issues in the proceedings. The court also found that there was a significant overlap between the evidence adduced on the hearing of the separate question and at trial, possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding. The court was concerned about the risk of inconsistent findings arising from the determination of separate questions. The court also considered the attitude of the parties and found that it would not be just and convenient to make an order for a separate determination of the issue. The court ultimately decided that the application for a separate determination of the issue should be dismissed.
In summary, the court in Willmann & Willmann (No 3) carefully considered the legal issues and the factors outlined in Marley & Ormonde [2020] FamCA 1046 before deciding not to make an order for a separate determination of the issue. The court found that the application for a separate determination of the issue was not appropriate, as it would not contribute to the just, quick, and cheap resolution of the real issues in the proceedings. The court also found that there was a significant overlap between the evidence adduced on the hearing of the separate question and at trial, possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding. The court was concerned about the risk of inconsistent findings arising from the determination of separate questions. The court also considered the attitude of the parties and found that it would not be just and convenient to make an order for a separate determination of the issue. The court ultimately decided that the application for a separate determination of the issue should be dismissed.
The legal issues the court was required to decide in this case revolved around the application for a separate determination of an issue under Rule 10.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"). The court had to determine whether the application for a separate decision on any issue was appropriate, considering factors such as the potential disposal of all or part of the proceeding, the possibility of making a trial unnecessary or substantially shorter, and the potential to save substantial costs. The court also had to consider the considerations set out in Marley & Ormonde [2020] FamCA 1046, which included the overriding purpose of the Civil Procedure Act 2005, the just, quick, and cheap resolution of the real issues in the proceedings, and the potential complications that could arise in relation to appeals, overlapping factual issues, or questions of credit if the same witnesses had to give evidence in relation to a separated question and those that were not. The court had to weigh these factors against the time likely to be taken in the hearing of a separate question and the availability of hearing dates for that purpose, against the time and expense of a substantive hearing and the length of time likely to elapse before such a hearing would take place. The court also had to consider the attitude of the parties and the relative importance of various factors to be considered in exercising the discretion conferred.
The court's reasoning and outcome in this case were based on the considerations outlined in Marley & Ormonde [2020] FamCA 1046. The court found that it was necessary to clearly see that the separate determination of the question would facilitate the quicker and cheaper resolution of the proceedings. The court also considered whether the separate determination of the question might contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the proceedings, or contribute to the settlement of the litigation. The court weighed the potential complications that could arise in relation to appeals, overlapping factual issues, or questions of credit if the same witnesses had to give evidence in relation to a separated question and those that were not. The court also considered the attitude of the parties and the relative importance of various factors to be considered in exercising the discretion conferred. Based on these considerations, the court decided not to make an order for a separate determination of the issue. The court found that the application for a separate determination of the issue was not appropriate, as it would not contribute to the just, quick, and cheap resolution of the real issues in the proceedings. The court also found that there was a significant overlap between the evidence adduced on the hearing of the separate question and at trial, possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding. The court was concerned about the risk of inconsistent findings arising from the determination of separate questions. The court also considered the attitude of the parties and found that it would not be just and convenient to make an order for a separate determination of the issue. The court ultimately decided that the application for a separate determination of the issue should be dismissed.
In summary, the court in Willmann & Willmann (No 3) carefully considered the legal issues and the factors outlined in Marley & Ormonde [2020] FamCA 1046 before deciding not to make an order for a separate determination of the issue. The court found that the application for a separate determination of the issue was not appropriate, as it would not contribute to the just, quick, and cheap resolution of the real issues in the proceedings. The court also found that there was a significant overlap between the evidence adduced on the hearing of the separate question and at trial, possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding. The court was concerned about the risk of inconsistent findings arising from the determination of separate questions. The court also considered the attitude of the parties and found that it would not be just and convenient to make an order for a separate determination of the issue. The court ultimately decided that the application for a separate determination of the issue should be dismissed.
Orders
Orders of the court
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Background
Background to the litigation
The respondents filed a detailed Case Outline on 18 October 2022. The husband in opposing their application for a separate hearing filed extensive written submissions on 19 October 2022. The wife filed written submissions as to the separate hearing issue on 19 October 2022. Background The wife was born in 1981 and is 41 years of age. The husband was born in 1979 and is 43 years of age. In the year of the wife’s birth, the respondents acquired a property at C Street, B Town NSW (“the D Property”). The second respondent’s affidavit records that since their initial purchase, he and the third respondent have added and sold a number of parcels of land making up the D Property. His evidence further records that:(a)In 1985, the respondents completed construction of their family home on D Property and that they raised their four children, including the wife, in that home. The husband and wife lived in that family home for a period of about six years from 2011 to 2017. As I understand it, the husband’s relief sought by way of paragraphs 3 to 7 of his Response to an Initiating Application filed on 18 October 2021 is as to the block of land on which the family home is situated, being Dwelling 1, D Property, Folio …. I shall refer to this property as “the [Dwelling 1, D Property]” for the purpose of these reasons; (b)In 1986, the respondents completed construction of a separate cottage on the D Property. The respondents lived in that cottage at various times, including while the husband and wife lived in the family home at Dwelling 1, D Property. The respondents’ son currently live in the cottage at D Property with his three children; and(c)There are a number of other dwellings on the D Property, including work and residential buildings. The respondents currently live in Sydney. They plan to return to the D Property upon retirement to live in the family home at Dwelling 1, D Property. The husband and wife married in early 2008. There are two children of the marriage, presently aged 20 and 13 respectively. The husband and wife do not agree on the date of separation. The wife asserts that the parties separated on 1 January 2018, while the husband asserts that the parties separated on 12 March 2021. On 6 October 2022 an Order for Divorce was made by Judge Kirton of the Federal Circuit and Family Court of Australia (Division 2). These proceedings were commenced by the wife on 18 August 2021 by way of an Initiating Application filed in the Family Court of Australia. She broadly sought orders for the adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) that she receive 70 per cent of the property of her and the husband and that the husband receive 30 per cent of that property. The husband filed a Response to that Initiating Application on 18 October 2021, seeking different orders to achieve an equal adjustment of the husband and wife’s property. By way of that Response the husband joined as parties to the proceedings the wife’s parents. As part of the husband’s final relief, he seeks a declaration that the respondents hold the property at Dwelling 1, D Property on trust for he and the wife as tenants in common in equal shares, and orders implementing the transfer of that entire property to he and the wife. In the alternative he sought a declaration that Dwelling 1, D Property was subject to an equitable charge in favour of he and the wife “for such amount as the court deems is just and equitable, for the contributions (financial and non-financial)” made and monies by way of damages for any prejudice he and the wife suffered relying on contended expectations created by the parents by the husband or wife to Dwelling 1, D Property. He sought further consequential orders for the sale of Dwelling 1, D Property so as to liquidate the contended interest he asserted as held by he and the wife.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Rule 10.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides that:10.10 Application for separate decision (1) A party may apply for a decision on any issue, if the decision may:(a) dispose of all or part of the proceeding; or (b) make a trial unnecessary; or (c) make a trial substantially shorter; or (d) save substantial costs.(2)An application under this rule must be made by filing an application in accordance with the approved form. Rule 10.11 of the Rules further provides that:(1) On an application under this Part, the court may:(a)dismiss any part of the proceeding; or (b)decide an issue; or (c)make a final order on any issue; or (d)order a hearing about an issue or fact; or (e)with the consent of the parties, order arbitration about the proceeding or a part of the proceeding.(2)If the court makes orders against a party who is claiming relief against the party who obtains the orders, the court may stay execution on, or other enforcement of, the orders until determination of that claim. For the purposes of the Rule, the word “issue” may be an issue of fact or an issue of law. The construction of the Rule is broad, providing the Court with a wide discretion to utilise the powers identified in the Rule with reference to the Act. In Marley & Ormonde [2020] FamCA 1046 (“Marley & Ormonde”), DCJ McClelland set out the considerations to be taken into account in determining whether to make an order for a separate determination of an issue, as summarised by Hallen AsJ (as his Honour then was) in Southwell v Bennett [2010] NSW 1372 at [15]-[17]. Those considerations include: 15. …(e)As a general rule, the discretionary power to order separate determination of a question should be approached with caution.(f)In exercising its discretion, the overriding purpose of the Civil Procedure Act 2005, namely the just, quick and cheap resolution of the real issues in the proceedings (s 56) must be given effect.(g)Generally, all questions of fact and law should be determined at the one time. If the court is to depart from that position, the party seeking the separate determination of a question must satisfy the court that it would be “just and convenient” for that order to be made.(h)While it may appear attractive, superficially, to order the trial of a separate question, experience often shows that it will not be so, for example, because of the complications that can arise in relation to appeals, or to overlapping factual issues, or to questions of credit, if the same witnesses have to give evidence in relation to a question that is separated and those questions that are not.…(j)Before a question is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings.(k)Where findings as to the credit of a witness is, or of witnesses are, or may be, involved in the consideration of the evidence relevant to the question, it is inappropriate to order a separate trial.(l) Often, a separate question is heard on the basis of:(i)agreed statements of fact;(ii)a narrow point to be determined; and (iii)a hearing that is able to be conducted within a short time (or a short time relative to the total length if the hearing of the separate question were not to be dealt with).(m)Factors that tend to support the making of an order, include that the separate determination of the question may:(i)contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the proceedings;(ii)contribute to the settlement of the litigation.(n)It may be appropriate to determine a separate question, even if it will not resolve all the issues, provided that there is a strong prospect that the parties will agree upon the result when the core of the dispute has been decided, or if the decision will obviate unnecessary and expensive hearings of other questions. The determination of the one question should enable a sensible reassessment of litigation risks, which is generally likely to encourage some form of settlement discussions.(o)Relevantly, one factor that may tell against the making of an order would be where there is likely to be a significant overlap between the evidence adduced on the hearing of the separate question and at trial — possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding. There is always a risk of inconsistent findings arising from determination of separate questions.(p)Whilst the decision is ultimately one for the court to determine, it will have regard to the attitude of the parties.(q)It is a relevant consideration to weigh the time likely to be taken in the hearing of a separate question and the availability of hearing dates for that purpose, against the time and expense of a substantive hearing and the length of time likely to elapse before such a hearing will take place.(r)Each case will have its own dynamics that dictate the relative importance of various factors to be considered in exercising the discretion conferred.(s)It is necessary that there be precision, both in formulating the question, and in specifying the facts upon which it is to be decided.(Citations omitted)
Ratio Decidendi
Legal Principle Established
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