Esselbrugge and Esselbrugge & Ors - [2019] FamCA 431

FAMILY COURT OF AUSTRALIA

ESSELBRUGGE & ESSELBRUGGE AND ORS

[2019] FamCA 431

FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife seeks interim relief for spousal maintenance against the husband – Whether the husband has the capacity to fund ongoing interim spouse maintenance – Where the parties were not in dispute as to the wife’s need for maintenance – Whether the husband has financial resources from his parents – Where the husband has the income and financial resources to pay to the wife the sum of $700 per week in the form of spousal maintenance.

FAMILY LAW – SUMMARY DISMISSAL – Where the husband and second respondents sought summary dismissal of the wife’s interim application for declaratory relief – Where the wife sought orders that the second respondents’ transfer fifty percent of their business to the wife and husband as part of the property pool – Where the wife claims her and the husband hold a fifty percent beneficial interest – Where the test for summary dismissal is where there is no reasonable likelihood of success of the wife’s application – Unconscionability – Promissory estoppel – Common intention - Where the Court is not satisfied there is no reasonable likelihood of success of the wife’s claim – Application dismissed.

Family Law Act 1975 (Cth) ss 72, 74, 75

Family Law Rules 2004 (Cth) r 10.12

Baumgartner and Baumgartner (1987) 164 CLR 137
Bigg v Suzi (1998) FLC 92-799
Bretton & Bondai [2013] FamCAFC 168
Giumelli v Guimelli (1999) 196 CLR 101
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1
Pelerman (2000) FLC 93-037
Redman and Redman (1987) FLC 91-805
Shaw & Shaw [2016] FamCAFC 159
Walton Stores (Interstate) Pty Ltd v Maher (1988) 164 CLR 387
Williamson and Williamson (1978) FLC 90-505

APPLICANT:

Ms Esselbrugge

FIRST RESPONDENT:

Mr Esselbrugge

SECOND RESONDENTS:

Mr B Esselbrugge and Ms D Esselbrugge

FILE NUMBER:

CSC

619

2018

DATE DELIVERED:

5 July 2019

PLACE DELIVERED:

Townsville

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

13 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wilson QC

SOLICITORS FOR THE APPLICANT:

Reaston Drummond Law

COUNSEL FOR THE RESPONDENT:

Mr Hackett

SOLICITORS FOR THE RESPONDENT:

Hirst & Co

COUNSEL FOR THE SECOND RESPONDENTS:

Mr Bunning

SOLICITORS FOR THE SECOND RESPONDENTS:

Simonidis Steel Lawyers

Orders

That until further order, the husband pay the wife interim spouse maintenance in the sum of $700.00 per week.
That the second respondents’ application for summary dismissal for the wife’s claim against them 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 & Esselbrugge 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…

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.

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Details

Case: [2019] FamCA 431
Decision Date: 5 July 2019

CaseChat Overview and Summary

In *Esselbrugge and Esselbrugge & Ors*, heard by Tree J, the wife sought interim spousal maintenance from the husband, with no dispute raised regarding her need for such maintenance. The central question concerning this aspect of the application was whether the husband possessed the financial capacity to fund ongoing interim spousal maintenance. Additionally, the husband and second respondents sought the summary dismissal of the wife's application for declaratory relief concerning a business owned by the second respondents. The wife claimed that she and the husband held a fifty percent beneficial interest in this business, which she sought to have transferred as part of the property pool.

The court was required to determine two primary legal issues. Firstly, it had to assess the husband's capacity to pay interim spousal maintenance, considering his income and financial resources, including any potential financial assistance from his parents. Secondly, the court had to consider whether the wife's claim for a beneficial interest in the second respondents' business had no reasonable likelihood of success, which is the threshold for summary dismissal. The wife's claim in this regard was based on grounds including unconscionability, promissory estoppel, and common intention.

Regarding the spousal maintenance, Tree J found that the husband had sufficient income and financial resources to pay the wife $700 per week. In relation to the application for summary dismissal, the court was not satisfied that the wife's claim regarding the beneficial interest in the business had no reasonable likelihood of success. Consequently, the court dismissed the application for summary dismissal.

The court ordered that, until further order, the husband pay the wife interim spousal maintenance in the sum of $700.00 per week. The application by the second respondents for summary dismissal of the wife’s claim against them was also dismissed.

Orders

Orders of the court

That until further order, the husband pay the wife interim spouse maintenance in the sum of $700.00 per week.

That the second respondents’ application for summary dismissal for the wife’s claim against them be dismissed.

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

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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