FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Willmann & Willmann (No 5) [2023] FedCFamC1F 75
File number(s): SYC 6037 of 2021 Judgment of: CAMPTON J Date of judgment: 17 February 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application by the husband to amend his claim against the second and third respondents, being the wife’s parents – Where one aspect of the proposed amendment to the claim relates to the identification of a property and is permitted – Where the further aspects of the amendments substantially change the relief sought by the husband in a manner not previously raised by him – Where leave to amend is sought three weeks prior to the hearing of the husband’s claim against the wife’s parents – Where all parties have filed their affidavit evidence to be relied upon at that hearing – Where to permit a late the further aspects of the amendments sought would occasion to the wife and the wife’s parents and would be inconsistent with the mandatory objectives imposed by the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Further amendments not permitted – Order for costs made by consent. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67 and 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.03, 7.13
Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 28 November 2022
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Willmann & Willmann (No 3) [2022] FedCFamC1F
Willmann & Willmann (No 4) [2022] FedCFamC1F 1016
Division: Division 1 First Instance Number of paragraphs: 53 Date of hearing: 16 February 2023 Place: Sydney Counsel for the Applicant: Mr Stapleton Solicitor for the Applicant: Watts McCray Lawyers Solicitor for the First Respondent: Mr Finan, Barkus Doolan Winning Solicitor for the Second and Third Respondents: Mr Hensley, Pigdon Norgate Family Lawyers ORDERS
SYC 6037 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WILLMANN
Applicant
AND: MS WILLMANN
First Respondent
MR ANDREWS
Second Respondent
MS ANDREWS
Third Respondent
order made by:
CAMPTON J
DATE OF ORDER:
17 February 2023
BY CONSENT THE COURT ORDERS THAT:
1.Order 1 of 26 September 2022 be varied to replace the words, “[Ms J]” with “[Mr K]”.
2.Within seven (7) days of the date of these orders, the husband provide any response in relation to the draft joint letter of instruction addressed to Mr K and sent to the husband’s lawyer on 1 February 2023.
AND ON A DEFENDED BASIS IT IS ORDERED THAT:
3.In accordance with Order 15 of the orders made on 27 October 2022, the husband attend to payment of his contribution of the fees of the single real property expert valuer, L Services, in the sum of $8,800 by close of business on 20 February 2022.
4.The husband…
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CaseChat Overview and Summary
In Willmann & Willmann (No 5), the Federal Circuit and Family Court of Australia addressed a complex dispute between the husband, his wife, and her parents. The husband sought declaratory relief and an order for the transfer of a specific property, alleging that the wife's parents held it on trust for him and his wife. This property was located at C Street, B Town, NSW. The husband's claim was based on the principle of promissory estoppel, which he sought to enforce against the wife's parents who were joined to the proceedings. The wife's parents resisted the joinder and denied the husband's claims.
The central legal issue before the court was whether the husband's late and piecemeal amendments to his claim against the wife's parents were permissible under the Family Law Act and the court's rules. Specifically, the court had to determine if the husband's conduct violated the statutory provisions and procedural rules designed to ensure timely and orderly litigation. The court also had to consider the potential cascading impacts on the trial schedule and the broader objectives of case management in family law proceedings.
In resolving the matter, the court found that the husband's method of gradually disclosing changes to his claim was contrary to the statutory requirements and court rules, which mandate timely and comprehensive disclosure. The court held that the husband's dilatory approach risked undermining the court's carefully planned sequence of trial events. Given these considerations, the court concluded that the husband was bound by the case he had presented, including any omissions. Consequently, the court dismissed the husband's claim against the wife's parents, except for the costs, provided the husband did not exercise the leave granted.
The final orders of the court dismissed the balance of the relief sought by the husband against the wife's parents, except for the costs which were to be determined should the husband not exercise the leave granted. The court's decision emphasised the importance of adhering to procedural rules and timelines in family law proceedings to maintain the integrity and efficiency of the judicial process.
The central legal issue before the court was whether the husband's late and piecemeal amendments to his claim against the wife's parents were permissible under the Family Law Act and the court's rules. Specifically, the court had to determine if the husband's conduct violated the statutory provisions and procedural rules designed to ensure timely and orderly litigation. The court also had to consider the potential cascading impacts on the trial schedule and the broader objectives of case management in family law proceedings.
In resolving the matter, the court found that the husband's method of gradually disclosing changes to his claim was contrary to the statutory requirements and court rules, which mandate timely and comprehensive disclosure. The court held that the husband's dilatory approach risked undermining the court's carefully planned sequence of trial events. Given these considerations, the court concluded that the husband was bound by the case he had presented, including any omissions. Consequently, the court dismissed the husband's claim against the wife's parents, except for the costs, provided the husband did not exercise the leave granted.
The final orders of the court dismissed the balance of the relief sought by the husband against the wife's parents, except for the costs which were to be determined should the husband not exercise the leave granted. The court's decision emphasised the importance of adhering to procedural rules and timelines in family law proceedings to maintain the integrity and efficiency of the judicial process.
Orders
Orders of the court
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Background
Background to the litigation
The balance of the relief contained in the husband’s Application in a Proceeding and each of the wife and the wife’s parents’ Responses to an Application in a Proceeding shall be dismissed, save as to costs should the husband not exercise the leave granted. BACKGROUND The husband and the wife married in 2008. They have two children, one of whom is an adult and the other a teenager. The wife asserts the parties separated in January 2018. The husband asserts the parties separated on 12 March 2021. On 6 October 2022 an order for divorce was made in the Federal Circuit and Family Court of Australia (Division Two). The husband’s Response sought declaratory relief that the wife’s parents held an item of real property on trust for he and the wife, specifically identified as being “the property situate at and known as [C Street, B Town] NSW […] and being the whole of the land comprised in certificate(s) of title volume folio/folio identifier […]” (that is, C Street). He sought ancillary orders for the wife’s parents to transfer that property to the husband and wife as tenants in common. As an alternative to his primary relief, he sought a declaration that the specific identified property be subject to an equitable charge in favour of the husband and the wife to the value of their contributions to it. On 15 December 2021, in accordance with an order made on 17 November 2021, the husband filed and served a Points of Claim document framing the basis for relief sought against the wife’s parents. That document again precisely identified as the subject of the husband’s substantive relief sought as being “the property situate at and known as [C Street, B Town] NSW […] and being the whole of the land comprised in certificate(s) of title volume folio/folio identifier […]” (that is, C Street). The wife’s parents resisted their joinder to the proceedings. On 8 April 2022 orders were made by Rees J confirming the joinder as provided for by r 3.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). The reasons delivered by Rees J recorded the contention at that time of the wife’s parents that the case prosecuted by the husband did not establish any “detrimental reliance on the pleaded representations” by him that exceeded the “received benefits” from the wife’s parents (at [30]). On the husband’s own construction of his case, his position did not alter until the filing on his Application in a Proceeding on 9 February 2023. On 2 June 2022 the wife’s parents filed a Response to an Initiating Application and a Points of Defence document seeking that the husband’s relief as articulated be dismissed. The proceedings first came before me in the Major Complex Financial Proceedings list and directions were made on 26 August 2022. On that date the husband confirmed his claim against the wife’s parents was that contained in his Response filed on 18 October 2021, as pled in his Points of Claim filed on 15 December 2021. The orders made on that date included the following notations:E.The relief claimed by the husband as against the wife’s parents is as to a property at [C Street, B Town] NSW […] (“the [B Town] property”), such that he seeks a declaration that the wife’s parents hold that property on trust for he and the wife as tenant in common in equal shares and seeks a consequential order that the wife’s parents transfer their legal interest in that property to he and the wife. The claim of the husband as against the wife’s parents is by way of promissory estoppel.F.The husband’s claim as against the wife’s parents who are now the second and third respondents in the proceedings is pleaded by way of a Points of Claim document filed by the husband filed on 15 December 2021, and that [the wife’s parents] have filed Points of Defence on 2 June 2022. (As per the original)
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The husband’s process of drip-feeding to other parties and the Court his sequential amendments to his claim against the wife’s parents in an unhurried and dilatory fashion is contrary to the provisions of ss 67 and 68 of the FCFCOA Act, the Rules and this Court’s Central Practice Direction – Family Law Case Management, 28 November 2022. Putting it simply, it is all too late in the day. The cascading potential adverse impacts on the Court’s carefully crafted series of sequential trial events is too great. The risk of failing the implementation of the above mandatory objectives weighs heavily. The husband ought to be bound by the case that he has constructed, including omissions.CONCLUSION For all of the above reasons, orders shall be made a set out at the forefront of this judgment.
Ratio Decidendi
Legal Principle Established
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