Yalpat and Yalpat (No 3) - [2019] FamCA 717

FAMILY COURT OF AUSTRALIA

YALPAT & YALPAT (NO. 3)

[2019] FamCA 717

FAMILY LAW – JURISDICTION

Family Law Regulations 1984 (Cth)
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters opened for signature 15 November 1965, 658 UNTS 163 (entered into force 10 November 1969)

ZP v PS (1994) 181 CLR 639
Pascarl & Oxley [2013] FamCAFC 47
Chen v Tan [2012] FamCA 225

APPLICANT:

Mr Yalpat

RESPONDENT:

Ms Yalpat

INDEPENDENT CHILDREN’S LAWYER:

Mr Robinson

FILE NUMBER:

CAC

1305

2018

DATE DELIVERED:

20 September 2019

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

29 August 2019 & 20 September 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self-representing

SOLICITOR FOR THE RESPONDENT:

Infinity Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Robinson McGuinness

Orders

The Father’s challenge to Australia as the forum for the determination of issues relating to X and the property of the parties is 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 Yalpat & Yalpat 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 CANBERRA

FILE NUMBER: CAC 1305 of 2018

Mr Yalpat

Applicant

And

Ms Yalpat

Respondent

REASONS FOR JUDGMENT

These proceedings were commenced by Initiating Application filed by the Mother on 5 July 2018 in which she sought orders relating to the parties’ child, X, born in 2017, associated injunctions, unspecified property orders and orders in relation to child support. Since that time the Mother has withdrawn her application in so far as it relates to matters other than their child and property relief between them.
Initial orders were made on an ex parte basis that provided for X to live with his Mother and put in place protections to prevent X's removal from Australia. I directed that those orders and the Reasons for Judgment be sent to the Father by email by the Registrar of the Court. The proceedings were then adjourned to 10 September 2018.
On 9 July 2018 the Father was placed on notice of the proceedings by the Mother’s solicitor emailing various documents to the Father[1]. Those orders did not comply with the provisions for international service set out in Part IIAB of the Family Law Regulations 1984 (Cth) which enact processes for service in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (‘Hague Service Convention’), a Convention to which both Turkey and Australia are signatories. The service of initiating process overseas in…

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 717
Decision Date: 20 September 2019

CaseChat Overview and Summary

In *Yalpat and Yalpat (No 3)*, Gill J of the Federal Circuit and Family Court of Australia considered a challenge brought by the Father concerning the appropriate forum for the determination of issues relating to X and the property of the parties.

The central legal issue before the court was whether Australia was the proper forum for the resolution of these matters, despite the Father's challenge.

Gill J dismissed the Father's challenge, finding that Australia was indeed the appropriate forum for the determination of the issues concerning X and the property of the parties. The court's reasoning and the specific legal principles applied in reaching this conclusion are not detailed in the provided extract.

The Father's challenge to Australia as the forum for the determination of issues relating to X and the property of the parties was dismissed.

Orders

Orders of the court

The Father’s challenge to Australia as the forum for the determination of issues relating to X and the property of the parties is 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.