Willmann & Willmann (No 4) - [2022] FedCFamC1F 1016

Federal Circuit and Family Court of Australia
(DIVISION 1)
Willmann & Willmann (No 4) [2022] FedCFamC1F 1016

File number: SYC 6037 of 2021

Judgment of: CAMPTON J

Date of judgment: 19 December 2022

Catchwords: FAMILY LAW – PROPERTY – PRACTICE AND PROCEDURE – Oral application to amend Points of Claim – Where the husband seeks to extend his equitable claim to a property owned by the wife’s parents to include an additional two properties – Where the separate claim against the wife’s parents is listed for trial to commence within three months – Where each of the parties have filed extensive affidavit material – Where no notice of the purported amendment to the husband’s claim had been provided – Application of the husband to amend Points of Claim dismissed.

Legislation: Family Law Act 1975 (Cth) s 79

Cases cited: Willmann & Willmann (No 3) [2022] FedCFamC1F 827

Division: Division 1 First Instance

Number of paragraphs: 11

Date of hearing: 19 December 2022

Place: Sydney

Solicitor for the Applicant: Mr Finan, Barkus Doolan Winning

Solicitor for the Respondents: Mr Frakes, Watts McCray

Solicitor for the Respondents: Ms Pigdon, Pigdon Norgate

Solicitor for the proposed intervener: Mr Moore, Sim & Co Legal Services
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:

19 DECEMBER 2022

THE COURT ORDERS THAT:
1.The husband be granted leave to make an oral application to rely upon an amended Points of Claim seeking relief against the second and third respondents as contained in the document filed on the Commonwealth Court Portal without leave on 17 October 2022 at 1.34 pm.
2.The oral application made by the husband is refused.
3.The Points of Claim document filed on the Commonwealth Court Portal without leave on 17 October 2022 at 1.34 pm is voided.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Willmann & Willmann has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:

Mr Willmann (“the husband”) seeks leave to make an oral application to amend his Points of Claim filed on 15 December 2021 seeking relief against Mr Andrews and Ms Andrews (“the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Willmann & Willmann (No 4)

Details

AGLC: Willmann & Willmann (No 4) [2022] FedCFamC1F 1016
Case: [2022] FedCFamC1F 1016
Decision Date

CaseChat Overview and Summary

In the matter of Willmann & Willmann (No 4), the Federal Circuit and Family Court of Australia (Division 1) presided over by Justice Campton addressed an application by Mr Willmann to amend his Points of Claim. The dispute involved a property owned by the wife’s parents, with Mr Willmann initially seeking equitable relief concerning a single property but later seeking to include two additional properties in his claim. The respondents argued against the amendment, highlighting that no notice had been provided to them or the wife regarding this proposed change. The Court was tasked with determining whether the husband should be granted leave to amend his Points of Claim at such a late stage in the proceedings, particularly given the proximity of the scheduled trial.

The court examined the principles of procedural fairness and the necessity of providing adequate notice to all parties before allowing amendments to pleadings. Justice Campton considered the extensive affidavit material already filed and the impact of the proposed amendment on the respondents' ability to prepare for the upcoming trial. The respondents argued that the amendment would introduce a new case without proper notice, which would be unfair and prejudicial given the extensive evidence already prepared based on the original Points of Claim.

Justice Campton concluded that the husband had failed to provide a satisfactory explanation for the delay in proposing the amendment and the lack of notice to the respondents. The Court found that permitting the amendment at this stage would cause significant prejudice to the respondents, as they would not have had the opportunity to respond to the new claims. Given these considerations, the Court dismissed the husband’s application to amend his Points of Claim, thereby maintaining the integrity of the proceedings and ensuring that all parties could prepare adequately for the upcoming trial.

Orders