Esdale & Schenk

Case [2012] FamCA 111


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
Brugman & Marley [2012] FamCA 106
Ciabo & Ciabo (1996) FLC 92-651
DMW & Another v CGW (1982) 151 CLR 491
Jonah & White (2011) Fam LR 460
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123
Re Ross-Jones & Marinovich; Ex parte Greene (1984) 156 CLR 185
Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Vanin & Vanin [2012] FamCA 16
Wall & Mitchell [2010] FamCA 1194
Wenz & Archer (2008) 40 Fam LR 212
Zschokke & Zschokke (1996) FLC 92-693

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:

  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.

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

  1. In about eight weeks time, the trial between these parties is due to take place…

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Details
AGLC
Esdale & Schenk [2012] FamCA 111
Case
[2012] FamCA 111
Decision Date

CaseChat Overview and Summary

In *Esdale & Schenk*, heard before Murphy J, the applicant sought leave to file an amended application for final orders, while the respondent sought dismissal of the applicant's application filed on 1 February 2012. The respondent also sought dismissal of specific paragraphs within their own response filed on 29 February 2012.

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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