FAMILY COURT OF AUSTRALIA
| ESDALE & SCHENK | [2012] FamCA 111 |
| FAMILY LAW – DE FACTO – HOGAN ORDER – where applicant claims to have been in a de facto relationship with the respondent – where the respondent denies the existence of the alleged relationship – whether the Court has jurisdiction to make partial property orders when the jurisdiction of the Court is dependent on there being a de facto relationship and that issue has not yet been determined – where the Court has no jurisdiction to make interim property orders where a determination has not been made regarding the existence of a de facto relationship – whether the Court has jurisdiction to award costs where a determination regarding the existence of a de facto relationship has not been made – where the Court has jurisdiction – where, in the circumstances of this case, it is not just that the respondent should meet the litigation expenses of the applicant. |
| De Facto Financial Matters and Other Measures Act 2008 (Cth) Family Law Act 1975 (Cth) |
| Breen v Breen (1990) 65 ALJR 195 |
| APPLICANT: | Ms Esdale |
| RESPONDENT: | Mr Schenk |
| FILE NUMBER: | BRC | 9203 | of | 2011 |
| DATE DELIVERED: | 12 March 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney (by video) |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 6 March 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hackett of Counsel |
| SOLICITOR FOR THE APPLICANT: | Evans & Company Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Hodges of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Barbara Fox Solicitor |
Orders
IT IS ORDERED THAT:
The Applicant have leave to file an Amended Application for final orders,
The Application in a Case filed 1 February 2012 be dismissed.
The question of the costs of and incidental to the said Application in a Case be reserved to the trial judge.
Paragraphs 2 and 3 of the Response to an Application in a Case filed 29 February 2012 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Esdale & Schenk has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: BRC9203 of 2011
| Ms Esdale |
Applicant
And
| Mr Schenk |
Respondent
REASONS FOR JUDGMENT
In about eight weeks time, the trial between these parties is due to take place…
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- AGLC
- Esdale & Schenk [2012] FamCA 111
- Case
- [2012] FamCA 111
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the applicant should be granted leave to amend their application for final orders, and whether the respondent's application to dismiss the applicant's originating application should be upheld. Additionally, the court had to consider the respondent's application to strike out parts of their own response.
Murphy J granted the applicant leave to file an amended application for final orders. The court dismissed the applicant's original application filed on 1 February 2012, and also dismissed paragraphs 2 and 3 of the respondent's response filed on 29 February 2012. The question of costs associated with the dismissed application was reserved for the trial judge.
Orders
Orders of the court
IT IS ORDERED THAT:
1.
The Applicant have leave to file an Amended Application for final orders,
2.
The Application in a Case filed 1 February 2012 be dismissed.
3.
The question of the costs of and incidental to the said Application in a Case be reserved to the trial judge.
4.
Paragraphs 2 and 3 of the Response to an Application in a Case filed 29 February 2012 be dismissed.
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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