Esselbrugge and Esselbrugge

FAMILY COURT OF AUSTRALIA

ESSELBRUGGE & ESSELBRUGGE [2020] FamCA 155

FAMILY LAW – PRACTICE AND PROCEDURE – Objection to subpoena – Where the wife filed subpoenae directed to the banks of the second respondents – Whether there was ever an agreement or common intention beyond the husband’s employment – Where the wife claims that she and the husband have a 50 per cent interest in the second respondent’s business – Whether representations made to the banks demonstrate this interest – Where there is sufficient legitimate forensic purpose to justify the dismissal of the Notices of Objection – Order to amend the subpoenae but otherwise dismiss the Notices of Objection.

Alister v R [1984] 154 CLR 404
Esselbrugge & EsselBrugge and Anor [2019] FamCA 431
Martin & Martin and Anor (No. 2) [2014] FamCA 232
White v Tulloch v White (1995) FLC 92-640

APPLICANT: Ms Esselbrugge

RESPONDENT: Mr Esselbrugge

SECOND RESPONDENTS: Mr B Esselbrugge and Ms D Esselbrugge

FILE NUMBER: CSC 619 of 2018

DATE DELIVERED: 13 March 2020

PLACE DELIVERED: In Chambers

PLACE HEARD: In Chambers

JUDGMENT OF: Tree J

HEARING DATE: By submissions last filed on 28 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson QC

SOLICITOR FOR THE APPLICANT: Reaston Drummond Law

SOLICITOR FOR THE FIRST

RESPONDENT:

Hirst & Co

COUNSEL FOR THE SECOND RESPONDENTS Ms Murphy

SOLICITOR FOR THE SECOND RESPONDENTS Simonidis Steel Lawyers

Orders

1. That the wife have leave to amend the subpoenae issued 23 September 2019 and directed to the ANZ Bank and the Commonwealth Bank so as to only require documents pertaining to J Pty Ltd after 1 January 2008 to be produced for inspection.

2. That otherwise the Notices of Objection – subpoena filed 8 October 2019 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Esselbrugge & Esslebrugge has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC619/2018

Ms Esselbrugge

Applicant

And

Mr Esselbrugge

Respondent

And

Mr B Esselbrugge and Ms D Esselbrugge

Second Respondents

REASONS FOR JUDGMENT

introduction  

1. On 23 September 2019, subpoenae to produce documents directed to the ANZ Bank and the Commonwealth Bank were issued out of the Cairns Registry of the Family Court, at the behest of Ms Esselbrugge (“the wife”). On 8 October 2019, Notices of Objection - subpoena were filed by Mr B Esselbrugge (who together with his wife, I will refer to as “the second respondents”) to both subpoenae. On 27 November 2019, I ordered a timetable for the resolution of the two Notices of…